I received files in error meant for the other side’s client. What should I do?

“I’m a newly qualified solicitor acting in a litigation case. I received an email with attachments from the opposing party’s solicitor clearly sent in error and meant for their client. Am I duty bound to inform my client of its content and can the information be used in support of the clients’ case?”

Paragraph 6.4 of the SRA Code of Conduct for Solicitors 2019 (SCCS) states:

“Where you are acting for a client on a matter, you make the client aware of all information material to the matter of which you have knowledge, except when:

1. the disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime;
2. your client gives informed consent, given or evidenced in writing, to the information not being disclosed to them;
3. you have reason to believe that serious physical or mental injury will be caused to your client or another if the information is disclosed; or
4. the information is contained in a privileged document that you have knowledge of only because it has been mistakenly disclosed.”

If it is obvious the information was sent in error and is privileged, you should not disclose its content to your client or elsewhere in light of the exception at 6.4(d) and paragraph 1.2 SCCS, which states:

“You do not abuse your position by taking unfair advantage of clients or others.”

Rule 31.20 of the Civil Procedure Rules prevents a party who has inspected a document that was inadvertently disclosed in court proceedings from using the document without first obtaining the permission of the court.

Where privileged documents have been inadvertently disclosed and the mistake is obvious, lawyers on both sides should cooperate to resolve the matter as soon as possible.

Both parties are subject to a duty of honesty and it should not be necessary for such matters to be resolved by the courts.

For more information, see our practice note on legal professional privilege.