by Darian Nourian and Michael D. Stewart
Your client—a former executive recently terminated by her employer—hands you a trove of emails she received while still on the job, including one from the company’s in-house counsel. She believes these emails support her wrongful termination claim and wants you to use them. The documents look like gold. How do you proceed?
Or consider a different scenario: Opposing counsel inadvertently sends you a document clearly protected by the attorney-client privilege. Before you can say “manna from heaven,” you are already reading it. Now what?
These situations arise more often than practitioners may expect, and the consequences of mishandling them are serious enough that they can dramatically impact your representation in the matter. A recent California Court of Appeal decision out of our own Fourth/Third District, Guardian Storage Centers, LLC v. Simpson, 119 Cal. App. 5th 509 (2026), has sharpened the analysis considerably, extending well-established disqualification principles into new territory—documents that were not inadvertently disclosed, but intentionally taken and then forwarded to the attorney.
This article walks California practitioners through the governing ethical rule and common law framework, the practical tensions these situations create, and best practices for avoiding a costly misstep.
California Rule of Professional Conduct 4.4
Rule 4.4 provides the initial ethical framework. When a lawyer receives a document and it is “apparent” that the writing was inadvertently sent—and the lawyer knows or reasonably should know that the writing is privileged or protected work product—Rule 4.4 imposes multiple duties: (1) refrain from examining the writing any more than is necessary to ascertain if it is privileged, (2) promptly notify the sender, and (3) comply with any instructions from the sender regarding the return or disposition of the writing. The rule applies specifically to writings that appear to contain information that is “privileged or subject to the work-product doctrine.” Several features of Rule 4.4 are worth noting.
First, the rule is explicitly triggered by inadvertent transmission. On its face, it does not speak to documents that were deliberately taken and then provided to the lawyer—the so-called “purloined” or stolen document scenario. Guardian Storage has now addressed that gap, as discussed below.
Second, California’s Rule 4.4 is narrower in scope than its ABA counterpart and the rules of most other states, which can be a trap for the unwary, as discussed below.
Third, Rule 4.4 may also bear on an issue practitioners encounter with increasing regularity: embedded metadata. Word documents, Excel spreadsheets, and even PDFs can contain hidden information—tracked changes, comments, and prior drafts—that the sender may not have intended to share. California Rule 4.4 does not expressly address metadata, and there is not yet California authority squarely defining a lawyer’s ethical obligations upon receiving documents containing potentially privileged metadata. Even so, State Fund (discussed below) could arguably apply where a lawyer mines an opposing party’s metadata and uncovers information that appears privileged or protected work product. See Cal. Prac. Guide Prof. Resp. & Liability Ch. 7:151.6-9. Given that uncertainty, the prudent course—and the one most consistent with Rule 4.4’s purpose—is to treat inadvertently transmitted metadata the same as any other inadvertently transmitted privileged material.
The Consequences of Non-Compliance
The ethical duty under Rule 4.4 and the remedy of disqualification flow from separate but interlocking authorities. California courts have developed a common law framework—built primarily around three cases—that governs when an attorney who receives improperly obtained privileged material may be disqualified (or otherwise sanctioned).
State Compensation Insurance Fund v. WPS, Inc., 70 Cal. App. 4th 644 (1999)—on which Rule 4.4 is partly based—is the foundational case. It articulated the rule that when a lawyer receives materials that “obviously appear” privileged/confidential and it is reasonably apparent they were provided through inadvertence, the lawyer must refrain from further review beyond what is necessary to recognize the privilege, immediately notify the privilege holder, and pursue resolution by agreement or court guidance. Id. at 656. State Fund also recognized that disqualification may be appropriate where counsel fails to comply with these duties and other factors support the remedy. Id. at 657.
Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807, 818-19 (2007), applied the State Fund rule to attorney work product and confirmed that the duty is governed by an objective standard—what reasonably competent counsel would have concluded under the circumstances—making “I didn’t notice” arguments are generally unpersuasive where the privileged nature of the materials should have been apparent.
McDermott Will & Emery LLP v. Superior Court, 10 Cal. App. 5th 1083, 1115-16 (2017), emphasized that disqualification is not automatic. It is a discretionary, fact-specific remedy aimed at preventing unfair advantage and preserving public trust in the integrity of the judicial process, turning on whether counsel’s continued participation creates a genuine likelihood of affecting the proceedings.
Those principles, however, assumed a common predicate: the privileged material reached opposing counsel by mistake. But do the same obligations apply when the document was not accidentally sent at all, but intentionally taken?
Until recently, the answer was: Probably yes, but no court had said so squarely. State Fund and its progeny had been applied primarily in the classic inadvertent disclosure setting—the mistaken email, the document accidentally produced in discovery. Clark v. Superior Court, 196 Cal. App. 4th 37, 52-54 (2011), moved the analysis in that direction, applying State Fund principles where a client provided counsel with documents whose provenance was suspect, but the court stopped short of resolving the “purloined document” question definitively.
Guardian Storage answers it: Yes. In that case, a company’s privileged communication had been forwarded by a then-employee to her personal email account without the company’s knowledge. After her termination, she provided it to her attorney, who used it in a wrongful termination lawsuit against the company. The trial court denied the company’s disqualification motion.
The court of appeal reversed, holding that the State Fund rule applies with equal force where it is reasonably apparent that privileged material was “impermissibly taken from the privilege holder without authorization”—not merely in classic inadvertent disclosure situations. Guardian Storage, 119 Cal. App. 5th at 527. Guardian Storage is the first decision to clearly extend the State Fund rule to stolen or purloined documents.
The court also rejected the trial court’s narrow view that “future prejudice” requires proof the document would be used to prove a claim at trial. The analysis, the court held, more broadly examines whether the attorney’s possession of the material creates a “genuine likelihood” the privileged information “would impact the outcome of the litigation and the public’s trust in both the scrupulous administration of justice and the integrity of the bar.” Id. at 530. In other words, “I won’t use it at trial” is not a get-out-of-disqualification-free card if the information has already shaped litigation strategy, discovery, or settlement positioning.
The Possible Tension if the Client Insists on Using the Writing
In some cases, these situations present a practical difficulty: aligning what the client wants with what the lawyer’s ethical duties require.
When a potentially revealing document from the opposing party lands in a lawyer’s hands, the temptation to treat it as a gift can be powerful—and understandable. As in the earlier hypothetical, the client may see the document as strong support for their wrongful termination claim and be eager to put it to use. But the risk calculus for lawyer and client may diverge. The client, who does not face disqualification, may be perfectly happy to roll the dice and risk the disqualification of its counsel. The lawyer faces the prospect of removal from the case, with the disruption, expense, and reputational damage that may entail—plus potential disciplinary exposure.
Consider the lawyer who, out of an abundance of caution, wants to return the document and decline to use it, while the client insists on doing the opposite. That divergence of interests may well create a self-interest conflict under Rule 1.7(b), which prohibits representation where there is a “significant risk” that the lawyer’s own interests will “materially limit” the representation. If the client insists on using the document and the lawyer refuses, the lawyer may be left with no choice but to withdraw under Rule 1.16.
The tension is further complicated by the duty of “zealous” advocacy. In Aerojet-General Corp. v. Transport Indemnity Insurance, 18 Cal. App. 4th 996, 1006 (1993)—decided before the adoption of Rule 4.4—the court of appeal held that an attorney who innocently received opposing counsel’s memorandum disclosing the existence of a material witness was under no ethical obligation to return it or notify opposing counsel. Because the witness’s identity was nonprivileged information independently subject to discovery, the court concluded “the attorney’s professional obligation demands that he utilize his knowledge about the case on his client’s behalf.” Aerojet, 18 Cal. App. 4th at 1006.
Aerojet is perhaps best read as a product of its time. Measured against the current framework, the attorney’s conduct—reviewing the documents, retaining them for weeks to months, destroying them, and using the information to identify and depose a previously undisclosed witness, all without notifying opposing counsel—would seem to implicate Rule 4.4. The court’s core holding that the witness’s identity was a non-privileged fact independently subject to discovery would likely survive, but Aerojet offers little comfort to a lawyer tempted to treat it as broader license. The California Supreme Court has suggested as much, emphasizing the “clear standard” articulated in State Fund. See Rico, 42 Cal. 4th at 816.
Another tension arises when the document comes from the lawyer’s own client—for example, as in the hypothetical above, where a client hands counsel emails they took while still employed, believing the messages support their wrongful termination claim. Rule 4.4 contemplates the recipient lawyer notifying the sender—typically opposing counsel. But what if fulfilling that duty requires disclosing how the document came to be in counsel’s possession? Communications from a client to their lawyer are themselves privileged and confidential under Rule 1.6, and the source of the document may be inseparable from that confidence. If it becomes reasonably apparent that the client impermissibly obtained the document from the opposing party and provided it to counsel, the lawyer faces a genuine dilemma: notify the opposing party and potentially reveal confidential client communications, or stay silent and risk non-compliance with Rule 4.4. One possible path forward is to seek the client’s informed consent to disclosure before taking any action—but that requires the client’s cooperation, which may not be forthcoming. The rules pull in opposite directions, and neither gives way easily.
The Option of Seeking the Court’s Determination
When faced with a close call on whether Rule 4.4 applies, practitioners should consider seeking the court’s determination before taking further action. While no statute expressly denominates a “motion to determine privilege,” courts routinely entertain such motions. The court decides whether the document is privileged and whether any privilege has been waived. If the court finds the document privileged, the recipient would be well advised to delete and not use the document. If the court finds the privilege waived or the document non-privileged, the recipient attorney can then proceed with judicial authorization as a shield—a far more comfortable position. That said, counsel should recognize that even seeking the court’s intervention can be problematic if doing so would require disclosing client confidences; absent the client’s informed consent, the lawyer may be unable to request the court’s determination without implicating confidentiality duties, in which case withdrawal may be the only viable option.
The appropriate procedural vehicle depends on the circumstances. Where the material arrived through discovery, the discovery statutes provide the mechanism—including California Code of Civil Procedure Section 2031. Where the document was received outside of discovery, including documents provided directly by a client, the motion may be brought as a noticed motion in the pending action, styled as a motion for determination of privilege. See, e.g., Cal. Evid. Code § 916. Where no litigation is pending, and assuming the stakes warrant it, a declaratory relief action may be the appropriate vehicle for obtaining a judicial determination before taking further action with respect to the subject document.
The attorney in Guardian Storage gambled by proceeding without seeking such a ruling—and may well be disqualified under the court of appeal’s remand instructions to the trial court. A motion to determine privilege would seem far less costly and disruptive than the disqualification motion that may follow if counsel chooses wrong.
Appearing Outside California? The Rules May Be Broader
California lawyers appearing in other states face an issue worth flagging. Although California’s version of Rule 4.4 focuses on writings that appear to contain privileged material, or material protected by the work-product doctrine, most other state rules utilize a broader rule. The ABA Model Rule 4.4(b), adopted in varying form by the majority of states, applies to any writing “relating to the representation of the lawyer’s client.” That broader language could encompass internal business strategies, trade secrets, personnel information, and other confidential material that may not qualify as protected under California standards. California lawyers appearing in those jurisdictions are bound by the local rules—and should not assume that California’s narrower framework travels with them.
The Bottom Line
The consequences of mishandling the receipt of suspect documents—up to and including disqualification—are serious enough that the risk-reward calculus almost always favors caution. Several principles emerge from the governing rules and the case law:
“My client gave it to me” is not a safe harbor. The case law makes it clear that receiving a privileged or otherwise protected document from your client does not insulate you from the State Fund analysis if it is reasonably apparent the document was impermissibly taken from the opposing party.
The standard is objective. Willful blindness is not a defense—stop and assess before reading further.
Prompt notification matters. Compliance with Rule 4.4’s notification requirement creates a critical record that can be decisive in subsequent proceedings.
Seek a court determination on close calls. The cost of the motion is often far less onerous than the cost of disqualification.
Not using the document at trial is not the sole calculus. Courts will consider whether the privileged information has already affected litigation strategy, discovery, or settlement posture—not merely whether it will be used at trial.
Know your forum. If you are appearing outside California, the applicable jurisdiction’s rule is likely broader than Rule 4.4.
When suspect documents land on your desk, resist the temptation to treat them as “manna from heaven.” The consequences that may flow from their use are anything but heavenly.
Darian Nourian is an Associate at Sheppard, Mullin, Richter & Hampton LLP in Costa Mesa, California. He is a member of the firm’s Business Trial group. He can be reached at dnourian@sheppard.com. Michael D. Stewart is General Counsel of Sheppard, Mullin, Richter & Hampton LLP in Costa Mesa, California. He is also a member of the OCBA’s Professionalism & Ethics Committee. He can be reached at mstewart@sheppard.com.
The views expressed herein are the authors’ own.
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