RPC 1.1; 1.3; 8.4(c); 8.4(d); ABA Formal Opinion 94-382
Confidentiality; misdirected documents received from opposing counsel
Facts Presented: Lawyer received copies of deposition transcripts. Although the lawyer's client is not a signatory to the agreement, the participants agreed to keep the deposition transcripts confidential.
Questions Presented: (1) Should the lawyer return the deposition transcript to the mediator without looking at it? (2) Does the lawyer have a duty to share the document with the client? (3) May the lawyer use the contents of the document in accordance with the rules of evidence? (4) If the client has the right to keep the document, does the lawyer have a duty to notify the mediator or the other parties that it was sent to the lawyer?
Applicable Rules: RPC 1.1, 1.3, 8.4(c) and (d).
RPC Committee: The Rules of Professional Conduct do not address this issue. In view of the lack of guidance from the RPCs, and the lack of consensus in other jurisdictions, the Committee recommends that you review the guidance contained in ABA Formal Opinion 94-382. While not binding, it does afford a set of guidelines for the recipient, as well as the adverse lawyer.