Virginia: Legal Ethics – a Lawyer’s Confidences
In August, 2013, the Virginia State Bar publicized that its Standing Committee on Legal Ethics had approved Legal Ethics Opinion (“LEO”) 1871, regarding inadvertent receipt of confidential information during litigation discovery. LEO 1871 follows Va. Sup. Rule 4:1 (b)(6)(ii), which mandates a lawyer must destroy or sequester confidential information received inadvertently during discovery until the court resolves the privilege claim.
LEO 1871 opines that a lawyer receiving confidential information inadvertently during discovery: “(1) may review the information if necessary to determine his obligations under the discovery rule; (2) must notify the party producing the documents that the lawyer is in possession of them; (3) is not ethically obligated to return the information to opposing counsel; and (4) may sequester the material pending a judicial determination of whether and to, what extent the receiving lawyer may use the information”. However, the Virginia State Bars Standing Committee opines that inadvertent receipt of confidential information “outside of the discovery process” still involves LEO 1702 adopted in 1997, which obligates the receiving lawyer to follow the sending lawyer’s instructions to return, destroy or otherwise handle the confidential information.