The Risk of Zealous Advocacy: Litigators Receiving Anonymously Disclosed Documents and the Notification Requirement
professional responsibility; ethics; inadvertent disclosure; unauthorized disclosure; anonymous disclosure; zealous advocacy
The American Bar Association (ABA) created the Model Rules of Professional Conduct to provide guidance to lawyers, courts, and the entire legal profession regarding what a lawyer’s ethical duties entail. Model Rule 4.4(b) requires a lawyer to notify opposing counsel once the receiving lawyer knows, or reasonably should know, that the documents received were inadvertently sent. The ABA, however, explicitly left documents disclosed intentionally and without authorization beyond the scope of the rules, thus leaving lawyers who receive these documents with little guidance. Courts have taken varying approaches to handling documents of this type: some analogize unauthorized disclosures to inadvertent disclosures and mandate notice for documents provided by anonymous third parties, while others instead refuse to impose a notification requirement. This Note discusses the conflict about the notification requirement and anonymously disclosed documents. It examines the arguments for and against mandating notice to the opposing party in these situations. This Note proposes that notice should be required for intentional disclosures made by anonymous third parties because these documents can be analogized to those addressed in Model Rule 4.4(b), which implements a notice requirement for inadvertent disclosures. This Note then discusses how the ABA is in the best position to resolve the inconsistencies discussed and proposes a revised Model Rule 4.4(b) to help alleviate the uncertainty in this realm.
Rebecca J. Spendley,
The Risk of Zealous Advocacy: Litigators Receiving Anonymously Disclosed Documents and the Notification Requirement,
90 Fordham L. Rev. 1397
Available at: https://ir.lawnet.fordham.edu/flr/vol90/iss3/9