01/31/2006
New ABA Guidelines on Inadvertently Received Materials Based on New ABA Model Rule
ABA Formal Op No 05-437 (2005)
Brief Summary
In jurisdictions that have adopted ABA Model Rule 4.4(b), an attorney’s purely ethical obligation upon the receipt of apparently privileged or confidential documents has been narrowed. In effect, the burden of going forward to protect the information is now on the sender or, presumably, the sender's counsel. It may also be worth noting that Model Rule 4.4(b) is not limited by its terms to confidential documents, but would appear to apply to all inadvertently received documents.
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