During one of the defamation trials of Alex Jones about the tragic Sandy Hook school shooting, the parents’ attorney impeached Jones’ denials by using the digital history of his cell phone, years of texts proving scienter, and financials for his Infowars website.¹

How did the attorney obtain them? Jones’ lawyer sent them in error and took no remedial action – mistakes that earned him a suspension.² As Jones sat stunned on the stand, adverse counsel pressed him, “Your attorneys messed up.... You know what perjury is, right?”³

While most inadvertent disclosures are less dramatic, each one shows how quickly Digital Age boon can become legal ethics bane. How many lawyers have felt stomachs churn after learning that they or staff on their behalf misfired an email, or mistakenly disclosed client confidences in other ways – at risk to waiver of privilege, harm to clients and more?This column charts ethical currents swirling around unintended disclosures and explores how lawyers might protect themselves –  and one another – from the consequences.

Ethics Law Goes Only So Far

New York Rule 1.6(c) requires attorneys to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This duty obliges a lawyer to take reasonable precautions to prevent unintentional disclosures when “transmitting a communication” that includes such information.⁴

After an inadvertent disclosure, New York Rule 4.2(b), much like Model Rule 4.4(b), directs that a “lawyer who receives a document, electronically stored information or other writing relating to the representation of the lawyer’s client and knows or reasonably should know that it was inadvertently sent shall promptly notify the sender” – but not necessarily return it, or avoid reading it. The commentary narrates that ethics law goes only so far, with a warning:

Although [Rule 4.2(b)] does not require that the receiving lawyer refrain from reading or continuing to read the document, a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion. Whether the lawyer or law firm is required to take additional steps, such as returning the document or other writing, is a matter of law beyond the scope of these Rules, as is the question whether the privileged status of a document or other writing has been waived.

By contrast, federal law places a responsive burden on the recipient. Under the Federal Rules of Civil Procedure, the recipient, once made aware of an inadvertent production, must “promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; ... [and] must take reasonable steps to retrieve the information if the party disclosed it before being notified.”⁵ Violations are subject to sanctions.⁶

New York efforts to embrace this federal standard have stalled. The New York City Bar lamented so in 2019:

“It does not make sense that a lawyer in receipt of inadvertently disclosed information must use it to represent his or her client effectively.  It simply is not expected that a lawyer will obtain confidential information from an adversary, nor from any other party through sheer inadvertence.  The baseline presumption in our legal system is that effective legal representation is rendered when no confidential information from our adversary is discovered.”⁷

Because New York ethics law goes only so far, a lawyer whose stomach churns on learning that they are responsible for an inadvertent disclosure should take a breath, take an antacid, and promptly contact the recipient. A friendly call with written follow-up might avert a mess. After all, professionalism asks our best, and what goes around might come around.

When Nice Is Not Enough

Collegiality does not always overcome the thrill of turning adversary error to advantage. When nice is not enough, fast action can make the difference. 

Decades before Federal Rules of Evidence 502(b) codified federal remedies of clawback and protection, the Fourth Department narrated in 1987 that reasonable diligence alone will not always protect client confidences —especially if records are voluminous and pace is quick – and that, in proper cases, remedial orders can restore the benefits of privilege waived under the then-prevalent standard.⁸ New York’s rule in all four Departments became that, while disclosure presumptively waives privilege,⁹ the disclosing party can establish non-waiver by showing “(1) production of the documents in question was inadvertent, (2) an intention to retain the confidentiality of privileged materials, (3) reasonable precautions to prevent disclosure, (4) a prompt objection, [and] (5) an absence of prejudice to [the recipient] were a protective order to be granted.”¹⁰ Nearby New Jersey and Connecticut have adopted similar standards.¹¹

Inadvertence.

Prove the mistake’s facts and circumstances in detail. Take responsibility. As with other law office failures, boilerplate claims are unlikely to suffice.

Intention.

Materials inherently privileged, such as unredacted expert reports prepared for litigation and trial strategy memos, presumptively carry protective intent.¹² Other documents, and perhaps many emails, might bear a “Privileged and Confidential” header to help show intent.

Precautions.

Have, use and prove a reasonable document control system (with periodic training) to prevent inadvertent disclosures. Promoting advanced diligence is the public policy purpose of the waiver rule and its exceptions. Expect court skepticism if a system fails more than once, or fails spectacularly.¹³ After an inadvertent disclosure, the sender immediately should consult ethics counsel and inform the court that they did so.

Promptness.

Whether the sender first discovers the error themselves or by Rule 4.2(b) notice from the recipient, act fast. Courts will credit speed —say, corrective proceedings within two business days if “nice” does not suffice.¹⁴ Jones’ attorney was suspended because he failed to respond to notice of his inadvertent disclosure. The sender also might “continually object” to the recipient, especially if the recipient tries to use inadvertently produced materials.¹⁵

Disqualification.

As the Rule 4.2(b) commentary suggests, a recipient who reads inadvertently disclosed materials risks disqualification. This remedy is more likely if the materials provide a case blueprint undiscovered by proper means and lesser remedies such as a protective order (pursuant to Section 3103 of the New York Civil Practice Law and Rules) cannot redress the prejudice. 

Breathe Before Hitting “Send”

We cannot hear this advice enough: stop and breathe before sending an email. Digital ease and speed raise the risk of mistakes. Always double check that addressees and attachments are correct, and that anything reprinted below the main message is necessary. The dreaded “reply all” can be particularly problematic. The Rule 4.2(a) “No Contact Rule,” which generally bars an attorney from communicating about the subject of the representation with someone the attorney knows to be represented by another lawyer, bears a pivotal “prior consent” exception.¹⁶ The ease and speed of email induce so many lawyers to mistakenly copy their clients on messages to adverse counsel that the American Bar Association and New York City Bar issued key ethics guidance on the subject: copying one’s client on an email to adverse counsel can be held to grant Rule 4.2(a) consent and thereby waive the “No-Contact Rule,” opening the door to limitless direct communication with the client.¹⁷ Be careful.

An Ounce of Prevention

Counsel can save themselves and each other bouts of indigestion with a preliminary conference stipulation or other confidentiality order agreeing in advance to clawback and non-use of inadvertently disclosed materials. New York ethics law and federal law both invite these advance agreements,¹⁸ the New York Judiciary offers model language for them, and there is a growing perspective that it “borders on malpractice” not to use them.¹⁹

Mistakes happen. Wise lawyers will look around the corner before they do, and act promptly if they do. Just ask Alex Jones.

Endnotes

1 See Jones v. Heslin, No. 18-001835 (Tx. Dist. Ct. 2019), aff’d 2020 WL 1452025 (Tx. App. 2020).

2 See Lafferty v. Jones, 316 A.2d 742 (Conn. App. 2024).

3 E. Williamson, “Alex Jones, Under Questioning, is Confronted with Evidence of Deception,” N.Y. Times (Aug. 3, 2022); @LawCrimeNetwork, Aug. 3, 2022, 1:15 p.m., X, available at https://x.com/LawCrimeNetwork/ status/1554878549319946242.

4 22 N.Y.C.R.R. [N.Y. Rule] § 1200.0, N.Y. Rule 1.6, Comms. [16]-[17].

5 Fed. R. Civ. Pro. (“FRCP”) 26(b)(5) (B).

6 See Simon’s N.Y. Rules of Prof. Conduct Ann. (24th ed., 2024), § 4.4:18.

7 N.Y. City Op. 2019-3 (2019).

8 Mfrs. & Traders Trust Co. v. Servotronics, Inc., 132 A.D.2d 392, 398 (N.Y. App. Div., 4th Dep’t 1987).

9 See e.g., Doe v. Poe, 92 N.Y.2d 864 (1998).

10 John Blaire Communications, Inc. v. Reliance Capital Group, L.P., 182 A.D.2d 578 (N.Y. App. Div. 1st Dep’t 1992); see Oakwood Realty Corp. v. HRH Const. Corp., 51 A.D.3d 747 (N.Y. App. Div., 2d Dep’t 2008); Baliva v. State Farm Mut. Auto. Ins. Co., 275 A.D.2d 1030 (N.Y. App. Div., 4th Dep’t 2000); Curry Road, Ltd. v. K-Mart Corp., 191 A.D.2d 905 (N.Y. App. Div., 3d Dep’t 1993).

11 See N.J. R. Evid. 530(c)(2); Harp v. King, 835 A.2d 747 (Conn. 2003), following Gray v. Bicknell, 86 F.3d 1472 (8th Cir. 1996).

12 N.Y. Times Newspaper Div. of N.Y. Times Co. v. Lehrer McGovern Bovis, Inc., 300 A.D.2d 169, 171-172 (N.Y. App. Div., 1st Dep’t 2002).

13 See e.g., Harp, 835 A.2d at 768; Gray v. Bicknell, 86 F.3d 1472, 1483 (8th Cir. 1996).

14 See Servotronics, 132 A.D.2d at 400.

15 In re N.Y. City Asbestos Litig., 151 A.D.3d 550, 551 (N.Y. App. Div., 1st Dep’t 2017), lv dismissed 30 N.Y.3d 1055 (2018).

16 Rule 4.2(a).

17 ABA Comm. on Ethics & Pro. Resp., Formal Op. 503 (2022); N.Y. City Op. 2022-3 (2022).

18 See N.Y. Rule 4.2, Comm. [2]; Fed. R. Evid. 502(e); FRCP 26(f)(3) (D).

19 D. Hudson, Jr., “Alex Jones Case Shows Inadvertent Disclosure of Electronically Stored Information is a Real Risk,” Amer. B. Assn. J., Oct. 27, 2022.

David Evan Markus, Esq., chairs the WCBA Committee on Ethics & Professionalism and the WCBA Special Committee on the Future of the Bar and is elected to the New York State Bar Association House of Delegates and WCBA Executive Committee. He serves as Referee in Supreme Court, Ninth Judicial District, and previously served as Statewide Special Counsel for Programs and Policy for Chief Judges Judith Kaye and Jonathan Lippman.

Morgan Wertlieb is a third-year law student at Pace Law School and a legal intern at Abrams Fensterman, LLP. She holds a B.A. magna cum laude from Marist College.