The Notification Duty

Inadvertently Sent Documents

The Notification Duty

Model Rule 4.4(b) tells a lawyer who finds that a document or electronically stored information (ESI, such as email) has arrived by mistake to do one thing: notify the sender.¹ Rule 4.4, titled Respect for the Rights of Third Persons, now addresses ESI directly. Subsection (b) reads:

A lawyer who receives a document or ESI relating to the representation of the lawyer’s client and knows or reasonably should know that the document or ESI was inadvertently sent shall promptly notify the sender.

Comments 2 and 3 address the addition of ESI.²

Three conditions trigger the duty, and a single response discharges it. The conditions are these:

• the item is a document or ESI;
• the item relates to the representation of the recipient’s own client; and
• the recipient knows or reasonably should know that the item was inadvertently sent.

The response is prompt notice to the sender.

The duty turns on what the lawyer knows or reasonably should know, and receipt alone does not trigger it. A lawyer who opens an item with no reason to suspect an error has not yet met the third condition. The obligation begins when the lawyer learns, or should recognize, that the item was sent by mistake. From then on, the lawyer must notify the sender promptly.

The second condition confines the duty to items that bear on a matter the recipient is handling for a client. The text reaches an item “relating to the representation of the lawyer’s client” and nothing broader. A misdirected message that has no connection to any client matter falls outside it.

The rule’s text says notify, and it says nothing more. It does not tell the recipient to stop reading, to return or delete the item, or to refrain from using it. Other law may impose duties of that kind. One secondary source reasons by analogy to bailment law, which generally imposes a constructive bailment, entailing at least a duty to return the property, when a party takes possession of property knowing it has been separated from its rightful owner. The source concludes that the principle applies with as much or more force when a lawyer receives documents or electronic data that the lawyer has reason to know were stolen from another.³ That reasoning concerns stolen material rather than a mistaken transmission, and it comes from outside Rule 4.4(b). Questions of return and non-use are therefore treated separately later in this chapter.

The sections that follow take the rule apart in order. The next three examine the triggers: what counts as a covered document or ESI, what makes a transmission inadvertent, and when a lawyer knows or should know of the mistake. Then comes the meaning of prompt notice, followed by the limits of the rule: return and non-use, waiver of privilege, and duties imposed by other law. The chapter closes with metadata and mining.