It’s a scenario familiar to many lawyers: you open your inbox and realize opposing counsel accidentally copied you on an email – what should you do? But although the ABA first issued ethics guidance on this situation more than 25 years ago, a recent survey suggests that lawyers do not know the current rule in their particular jurisdiction. In fact, they do no better than random guessing.
The survey was conducted by Winnieware LLC, a legal technology start-up founded by former lawyers. The company’s ReplyToSome software application helps law firms and other organizations worried about accidentally disclosing their confidential information over email.
“Email mishaps are a big deal for law firms,” said Winnieware co-founder Peter Norman. “We wanted to see if lawyers know what the ethics rules require when a mistake does happen.”
The results were not encouraging. A total of 66 lawyers from around the country completed the online survey. Of these, only 14, or slightly more than 20%, selected the correct answer from a list of four multiple choice questions.
New York lawyers, who formed the largest group taking the survey, scored even lower than average. Only 2 of 27 New York respondents picked the correct answer. By contrast, 4 out of 10 California lawyers correctly guessed their state’s rule.
In addition to asking what they thought the correct rule was, the survey also asked respondents what course of action they personally would take. Here, the results reflect better on the legal profession: regardless of whether they knew the correct rule, over 90% of respondents said they would hold themselves to a standard at least as strict as what was in fact ethically required.
On the other hand, when asked what they thought other lawyers would do in the same situation, almost 30% of respondents thought that other lawyers would behave in a way that would fail to comply with the actual ethics rule.
The confusion over what ethics rules require might reflect debates within legal ethics circles. When in 1992 the ABA first issued an ethics opinion on the question of what lawyers should do with accidental communications from other parties, its position was that lawyers should stop reading and immediately return or destroy any such message. However, between 2002 and 2005 the ABA issued a series of opinions and amendments to the model rules rejecting their earlier stance. The current language in the ABA Model Rules of Professional Conduct, which has been adopted by 35 states, only requires lawyers to inform the sender that they’ve received an accidental communication, but does not require them to stop reading or destroy the message.