Thanks for the Headache
Illustration by Stuart Bradford
Usually they were just trying to help. But when someone—often a client—gives a lawyer privileged information that was stolen from the opposing party in a case, the main thing it does for the lawyer is create a great big ethics headache.
Actually, it is fairly common for lawyers to come into possession of an adversary’s privileged information, but most of the time it happens inadvertently. Rule 4.4(b) of the ABA Model Rules of Professional Conduct directs a lawyer who “knows or reasonably should know that the document was inadvertently sent” to “promptly notify the sender.” (The Model Rules are the direct basis for lawyer ethics codes in every state except California.)
The Model Rules clearly prohibit a lawyer from initiating the theft of an adversary’s privileged information. But sometimes clients, or others, take matters into their own hands. Technology makes the task even easier. Many people now have the means to access e-mail accounts or documents belonging to others, or to secretly record conversations. And then they deliver the materials to the lawyer, secure in the belief that they have helped the cause or at least enjoyed a small measure of revenge.
Whatever the motivation, however, it leaves the lawyer in an ethics quandary.
FIVE TO CONSIDER
But in deciding on a course of action, a lawyer should address these questions:
• Is it appropriate for the lawyer to review and use the privileged information, even though it was stolen? Lawyers often choose to do just that in the name of zealous representation of clients. Ethics authorities, however, are pretty much in accord that a lawyer should stop reviewing privileged information that was stolen as soon as possible.
• Should the lawyer surrender the stolen information to law enforcement authorities? In most cases, the answer is no, but the Florida Bar’s Ethics Opinion 07-1 (Sept. 7, 2007) states that a lawyer may need to consult with a criminal defense lawyer to determine whether a crime was committed.
• Should the lawyer destroy the stolen information? Doing so is risky because it may constitute the destruction of evidence, leading to civil or criminal liability. De?stroying the information also may violate Model Rule 3.4(a), which states that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” One possible way to mitigate such risks would be to turn the information over to a third party.
• Should the lawyer notify the party or attorney whose privileged information was stolen? There is no definitive answer to that question.
Opinion 318, issued in December 2002 by the District of Columbia Bar, notes that its Rule 1.15(d) prohibits a lawyer from reviewing and using information that may have been stolen if it is readily apparent the information is privileged, the lawyer knows the information came from someone not authorized to disclose it, and there is no reasonable basis for concluding that any privileges were waived.
Florida Bar Opinion 07-1 and New Jersey Ethics Opinion 680 (1995) analyze the question in the context of confidentiality considerations. New Jersey Opinion 680 concludes that disclosure is appropriate when required by law. But Florida Opinion 07-1 is more equivocal, noting the conflict between the duty to preserve client confidences and the prohibition against assisting a client in committing a crime.
• And finally, can a lawyer continue to represent a party in a case involving stolen information? Florida Opinion 07-1 concludes that if the client refuses to consent to disclosure to the opposing party where appropriate, the lawyer must withdraw from the representation. That is probably a good thing, because a client who knowingly stole information may create even greater dangers later in the representation.
Michael Downey is a St. Louis-based partner in the national Lawyers for the Profession practice group at Hinshaw & Culbertson. He is a council member for the ABA’s Law Practice Management Section.
