97-1.

• Case Date: January 17, 1997
• Court: Alaska

Alaska Ethics Opinion 1997. 97-1. Ethics Opinion No. 97-1 Notification of Opponent of Receipt of Confidential Materials.The Committee has been presented with a hypothetical situation in which a party in a divorce case intentionally mailed a copy of a confidential letter from her lawyer concerning the litigation to her adverse party's lawyer, and this was done without her lawyer's knowledge. Neither the adverse party, nor the adverse party's lawyer solicited the information. However, the receiving lawyer's client asked that his lawyer not disclose the receipt of the material because it might adversely affect his relationship with his estranged wife. The Committee was asked to opine whether the lawyer who received the letter must, over the objection of his client, notify the lawyer representing the party who mailed the letter. The Committee believes that the receiving lawyer has no obligation to notify her opponent. (Endnote 1) Alaska Rule of Professional Conduct that directly controls this situation. ARPC 4.2 prohibits a lawyer from communicating about the subject of the representation with the person the lawyer knows to be represented by another lawyer in the matter. However, in the hypothetical before us, it cannot be said that the lawyer receiving the letter from the other party is communicating at all with the other lawyer's client; he merely received a mailing containing a copy of a confidential communication, which he neither invited nor anticipated. Nor is this a situation in which a lawyer was mistakenly sent a confidential communication, such as by a misdirected facsimile transmission. In that situation, the ABA Standing Committee on Ethics and Professional Responsibility opined that a lawyer receiving inadvertent disclosure of confidential communication should return the communication unopened and unexamined to the opposing lawyer. ABA Formal Opinion 92-368, Inadvertent Disclosure of Confidential Materials (November 10, 1991). In so concluding, the ABA Standing Committee relied, in large part, upon the critical importance of maintaining confidentiality in the attorney-client relationship. However, in the hypothetical before this Committee, disclosure was not inadvertent at all, but was intentionally made by the client, who is, after all, the beneficiary of the rules of protecting attorney-client confidentiality. This...