PLEASE NOTE:  Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published

SUBJECT:

Proposed Formal Opinion Interim No. 06-0004 (Confidential Information and Unsolicited E-Mail Correspondence)

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct.  In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.

DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 06 0004 considers: If an attorney receives from a non-party a confidential communication between opposing counsel and opposing counsel’s client, what should the attorney do if the attorney reasonably believes that the communication may not be privileged because of the crime-fraud exception to the attorney-client privilege?

The opinion interprets rule 1-100(A) of the Rules of Professional Conduct of the State Bar of California; Code of Civil Procedure section 2018.050; and Evidence Code sections 915, 952, 954 and 956.

The opinion digest states: If an attorney receives an unsolicited intentionally transmitted written communication between opposing counsel and opposing counsel’s client under circumstances reasonably suggesting that it is a confidential communication apparently sent without the consent of its owner, the attorney may not ethically read the communication, even if she suspects the crime-fraud exception might apply.  The attorney must notify opposing counsel as soon as possible that the attorney has possession of the communication.  The two attorneys should try to resolve the privilege issue or, if that fails, obtain the assistance of a court.  Attorney may not read, disseminate, or otherwise use the communication or its contents absent court approval or consent of its owner.

At its October 31, 2009 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 06-0004 for a 90-day public comment distribution.  Subsequently, at its January 14, 2011 meeting, COPRAC revised the opinion in response to the public comments received and tentatively approved Formal Opinion Interim No. 06-0004 for an additional 60-day public comment distribution.  Following review of the additional public comments received, COPRAC further revised the opinion and at its October 11, 2012 meeting tentatively approved the Opinion for another 90-day public comment distribution.   

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT:

Proposed Formal Opinion Interim No. 06-0004

SOURCE:

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE:

5 p.m. January 22, 2013

DIRECT COMMENTS TO:
Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
Ph. # (415) 538-2116
Fax # (415) 538-2171
E-mail: angela.marlaud@calbar.ca.gov