This Opinion discusses a lawyer's ethical obligations not to use information obtained by a client in a civil case from documents copied from the records of a potentially adverse party that contain privileged or otherwise confidential information without the consent of opposing counsel or court order. The lawyer also must advise the client to refrain from obtaining other privileged documents and notify opposing counsel of the receipt of the information. [ERs 1.2, 1.6, 1.16, 3.4, 4.1, 4.4, 8.4]
CAUTIONARY NOTE: This Opinion relied on ABA Formal Opinions 92-368 and 94-382, which have since been withdrawn. See also ER 4.4(b), added in 2003.
FACTS[1]
The inquiring attorney poses the following factual situation:
An attorney represents a former employee of a state agency who was recently terminated for alleged violations of the agency's policies and procedures. The former employee is a female member of a racial minority. She believes that the agents of the ex-employer who terminated her were motivated by gender and racial bias. The former employee believes that the ex-employer has not terminated similarly-situated male, non-minority employees who have engaged in the same conduct for which the former employee was terminated. No lawsuit has been filed, although an administrative charge of discrimination was filed with the federal agency (U.S. Equal Employment Opportunity Commission) and its State counterpart (Arizona Civil Rights Division, Office of the Attorney General). If a lawsuit were to be filed, it would not be for several months, depending on what those agencies decide as to the merits of the former employee's case.
The former employee recently gave her attorney copies of documents of the ex-employer that appear, on their face, to be subject to the attorney-client privilege or to be otherwise confidential. The materials are addressed from officials of the ex-employer to the ex-employer's attorney and concern her matter. The former employee was provided copies of the documents by an "ally" who is still employed by the ex-employer and has access to the confidential information.
The former employee believes that her ally will continue to provide such information to her on an on-going basis. The ex-employer's lawyer and others within the ex-employer do not know that copies of these documents are being provided to the former employee, according to the former employee's ally.
If the ex-employer knew about the ally's activities, he or she would be terminated. If the ex-employer knew about the former employee's receipt of the documents, it would likely take aggressive action against her, her counsel, and everyone else identified with the disclosure of the documents.
QUESTIONS PRESENTED
1. What is the ethical duty of a lawyer who receives from his or her client copies of the documents and the information described above?
2. May the lawyer use the information in the documents?
3. May the lawyer continue to accept other such documents in the future?
4. Does the lawyer have an obligation not to use the information and, if so, what steps should he or she follow?
RELEVANT ETHICAL RULES
ER 1.2. Scope of Representation
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
* * * *
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.
ER 1.3. Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
ER 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.
ER 1.16. Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
ER 3.4. Fairness to Opposing Party and Counsel
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
ER 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by ER 1.6.
ER 4.4. Respect for Rights of Third Persons
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
ER 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
OPINION
The facts pit a lawyer's ethical obligations to his or her client against a lawyer's competing obligations to treat potentially adverse parties fairly and to respect the legal rights of others in obtaining evidence. Compare ER 1.3 Comment ("A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.") and ER 1.6(a) (except as specifically authorized, "[a] lawyer shall not reveal information relating to representation of a client unless the client consents") with ER 4.4 ("In representing a client, a lawyer shall not . . . use methods of obtaining evidence that violate the legal rights of [third] person[s].").
This Opinion is intended to apply only to the facts as presented by the inquiring attorney. At the outset, it is important to identify the issues that are not directly involved here:
· According to the facts, the lawyer obtained the documents through no effort of his or her own. Therefore it is unnecessary to discuss the ethical propriety of a lawyer attempting to obtain privileged or confidential information from an adverse party or its counsel. See, e.g., Ariz. Op. 2000-05 at 3-4 (Sept. 2000) (in interviewing a former employee of an adverse party, a lawyer must refrain from inquiring into any privileged communications the former employee may have had with employer's counsel during his or her employment).
· This also is not a situation where the lawyer receives privileged or confidential documents through the inadvertence of opposing counsel. Instead, the facts involve the unauthorized receipt of such materials through a client, who obtained them from a third party (the current employee of the ex-employer) who intended the lawyer to receive them. As such, the issue is not merely whether a lawyer may take advantage of an opposing counsel's mistake in erroneously transmitting or producing privileged or confidential documents to the lawyer. See ABA Formal Op. 92-368 (Nov. 10, 1992) (a lawyer who inadvertently receives privileged or confidential materials must (i) refrain from examining the materials, (ii) notify the sending lawyer of the mistaken transmission and (iii) abide the instructions of the lawyer who sent them).
· There also is nothing in the facts to suggest that the documents at issue disclose potentially criminal or illegal activity, which would give rise to other ethical considerations. See Hitch v. Pima County Superior Ct., 146 Ariz. 588, 708 P.2d 72 (1985) (setting forth disclosure obligations if a lawyer obtains from a third party evidence relevant to a crime). Also, the facts set forth by the inquiring attorney arise in the context of civil litigation rather than in a criminal case, where different considerations might apply. As such, this Opinion should be understood as not necessarily applying to a lawyer's obligations in a criminal case.
· Last, the lawyer received the documents from his or her client, who in turn obtained them from an unidentified "ally" who is still employed by the ex-employer. Thus, although it is closely related, this is not a situation where a lawyer has received privileged or confidential information merely from an unidentified source or from someone other than his or her client.
I. ABA FORMAL OPINION 94-382 (JULY 5, 1994).
The issues raised by the inquiring attorney are related, but not identical, to those considered in ABA Formal Op. 94-382, which discusses a lawyer's obligations if an unauthorized person offers to provide the lawyer with documents of an adverse party that appear to be privileged under the attorney-client privilege or "confidential" under ER 1.6. Acknowledging that none of the Model Rules explicitly address the issue, it opines that "public policy considerations" dictate that a lawyer has "a professional obligation to notify the adverse party's lawyer that she possesses such materials and either follow the instructions of the adversary's lawyer with respect to the materials, or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from the court." Id. at 2.
The Opinion reasons that a rule allowing a lawyer to use such materials "would place an adversary at the mercy of those who would use, on an unauthorized basis, the adversary's confidential communications" and who would seek "to undermine or sabotage" the adversary's legitimate efforts to protect its proprietary interests and privileges. Id. at 4. It stops short, however, of endorsing a rule requiring a lawyer to return such materials in all circumstances. It recognizes that the offering party in some instances "may be seeking to rectify improper or unjust conduct - for example, the failure to disclose such documents in response to a production request clearly calling for them." Id. at 3. The Opinion concludes that in such circumstances, it would be ethically proper for the lawyer to retain the material so long as he or she notifies opposing counsel of their receipt and "refrain[s] from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court." Id. at 5.
Neither the Arizona courts nor the past opinions of this Committee have cited or discussed ABA Formal Op. 94-382. Several courts in other jurisdictions, however, have endorsed it. Thus, reasoning that "a lawyer who uses privileged information improperly obtained from an opponent potentially subverts the litigation process," the Texas Supreme Court has recently held that "ABA Formal Opinion 94-382 represents the standard to which attorneys should aspire in dealing with an opponent's privileged information." In re Meador, 968 S.W.2d 346, 351 (Tex. 1998) (lawyer acted improperly in using privileged documents which the lawyer's client secretly removed from defendants' offices, but holding that lawyer should not be disqualified because defendant had not shown that it had suffered harm and because disqualification would cause the client to suffer serious hardship).[2] The ABA Opinion also is consistent with several other decisions that either predate it or do not explicitly refer to it.[3]
Not all jurisdictions, however, have embraced the Opinion's reasoning. One appellate court in California, which still follows a version of the Model Code of Professional Responsibility, has held that a lawyer could use confidential information set forth in documents that his client obtained from an adverse party's employee and was not required to inform opposing counsel of their receipt, at least where the lawyer played no role in obtaining the documents and where the information in the documents was not privileged. See Aerojet-General Corp. v. Transport Indem. Ins., 18 Cal. App. 4th 996, 1002-07, 22 Cal. Rptr. 2d 862, 865-68 (1993) (reversing sanctions against counsel; documents contained the identity of a witness that plaintiff argued should have been disclosed in discovery).[4] Ethics committees in several other jurisdictions also have issued opinions allowing a lawyer to make similar use of documents innocently obtained from an opposing party.[5] Those opinions, however, interpreted provisions of the Model Code rather than the Model Rules, which are applicable in Arizona. It also is not clear whether the documents at issue in some of those opinions contained privileged information.
II. RELEVANT OPINIONS OF THIS COMMITTEE.
A. Ariz. Op. 88-08 (Oct. 24, 1988).
In Ariz. Op. 88-08, a wife in a dissolution proceeding had surreptitiously tape-recorded her husband's deposition. During a break, the wife inadvertently left the tape recorder running and recorded a confidential communication between her husband and his counsel. Id. at 1. After later listening to the conversation, the wife asked her lawyer to listen to it because it contained information that was highly damaging to her husband and his counsel. Id.
The Committee concluded that the wife's lawyer could not listen to, rely on or otherwise use the tape recording. Id. at 7-9. Finding that there were "reasonable grounds to believe that the inquiring attorney's client could face criminal prosecution if her conduct were disclosed," the Committee reasoned that if the lawyer were to listen to or use the information on the tape-recording, the lawyer would: (i) violate ER 1.2(d) by assisting the client in her improper conduct by allowing her to benefit from conduct that the lawyer knew was criminal or fraudulent; (ii) expose the wife to possible criminal liability because any use of the tape's information would lead inevitably to the disclosure of the tape's existence; and (iii) breach ER 1.6's confidentiality requirements absent client consent to the disclosure of the tape's existence. Id. at 7-8. It also found that because the client had not "demanded" that the lawyer listen to the tape, the lawyer was not required to withdraw from the representation. Id. at 6.
The Opinion also concluded that while "under other circumstances, ER 4.1(b) might require that the inquiring attorney inform opposing counsel that the private conversation with her client had been tape-recorded," ER 4.1(b) specifically exempted disclosures prohibited by ER 1.6 and, as such, the lawyer was prohibited from notifying opposing counsel without client consent because ER 1.6 did not specifically authorize such a disclosure. Id. at 9.
B. Ariz. Op. 93-14 (Sept. 23, 1993).
Ariz. Op. 93-14 also discusses issues that are relevant here. In that Opinion, a client in a dissolution proceeding provided the lawyer with a cassette tape that the client had found in the client's residence. The tape contained a recording of a conversation between the client's spouse and an attorney who had represented the client's spouse in an earlier dissolution proceeding involving another party. Id. at 1. When the cassette was found, the client had exclusive possession and use of the residence under the terms of a temporary order entered in the dissolution proceeding. Id.
Emphasizing the absence of any facts to suggest that the client obtained the cassette through any impropriety or illegal conduct, the Committee concluded that the inquiring attorney could listen to the tape if the client consented to it after being informed that an attempt could be made to disqualify the lawyer if the lawyer listened to it. Id. at 3-4. The Opinion acknowledged that ABA Formal Op. 92-368 calls upon a lawyer, among other things, not to examine privileged or confidential material that is inadvertently sent to the lawyer by opposing counsel, but distinguished that Opinion on the ground that it was "the [client's] spouse, not the [client's] spouse's attorney" who "left the tape behind." Id. at 4.[6]
The Opinion also noted that if the tape was an original belonging to the spouse, "the inquiring attorney may have a duty" under ER 1.15 "to return the original to its owner," but the Opinion did not decide that issue. Id. at 5. It did opine, however, that if the circumstances required "disclosure of the existence of the tape or even its return to the spouse, the inquiring attorney must obtain the client's consent after consultation" before taking any action. Id. It relied, among other things, upon two ethics opinions from New York and Pennsylvania that expressed the view that without client consent, a lawyer may not disclose the fact that the client had obtained confidential information belonging to an adverse party. Id.[7]
III. DISCUSSION
The facts provided by the inquiring attorney do not reveal what role, if any, the client played in assisting or inducing her "ally" to provide her with copies of the ex-employer's documents. As the client's involvement in obtaining the documents affects a lawyer's ethical obligations, the following discussion first analyzes those obligations if the "ally" provided the documents without any prompting or assistance by the client and then examines a lawyer's obligations if client misconduct was involved.
A. If No Client Misconduct Is Involved.
Assuming that the documents were obtained through no misconduct by the lawyer's client, the ethical guidelines set forth in ABA Formal Op. 94-382 should govern because they strike the appropriate balance between a lawyer's obligations to his or her client and those that a lawyer owes to an adverse party and its counsel.
The protection of the attorney-client privilege and work product immunity should not be disregarded lightly, as lawyers cannot perform their professional roles unless they and their clients know that client communications and the lawyer's work product will not be put on public display. Non-privileged client confidences, although not rising to the same level of importance as privileged communications and materials, also are deserving of protection, particularly if they involve proprietary or otherwise sensitive information. The social value of those interests also dictate against endorsing a rule that would encourage people to attempt to override their protection unilaterally by engaging in subterfuge, espionage and deception. At the same time, the protections afforded to those interests should not be permitted in all circumstances to shield evidence of wrongdoing, especially when the information at issue is not privileged.
ABA Formal Op. 94-382 accommodates those competing concerns by requiring a lawyer who receives such material from a third party (i) to refrain from further examination of the material or from making use of it, (ii) to notify opposing counsel of its receipt, and (iii) either to abide by that counsel's instructions as to its disposition or to seek a ruling from a court as to whether it may be used. By "freezing" the receiving counsel's use of the information and by requiring opposing counsel to be notified of its receipt, the policy minimizes the harm arising from the information's disclosure while at the same time giving all parties the opportunity either to reach agreement as to what should be done about the disclosure or to seek assistance from a court to determine whether the information deserves protection against further disclosure or use.
The policy suggested by ABA Formal Op. 94-382 presupposes that the parties have a court from which they can seek relief. That is not the case here as no litigation has yet been brought, and presumably cannot be brought unless, and until, the appropriate federal and/or state agencies authorize it. Nonetheless, the same considerations apply. Although no lawsuit has been filed, the necessary prefiling procedures have been initiated and the parties to the matter are clearly adverse. In such circumstances, the lawyer should refrain from reviewing or making use of the information in the documents and notify the ex-employer's counsel that they have come into the lawyer's possession. At that juncture, it would be ethically permissible for the lawyer to retain (but not examine or use) the documents if he or she decides it is in the client's best interest to contest their protected status once a lawsuit is filed.
Adhering to the procedures set forth in ABA Formal Op. 94-382, however, is subject to one major qualification not discussed in that Opinion - client consent. Because the lawyer here learned of the documents' existence as a result of his or her representation of the client and because no exception to ER 1.6(a) applies here, ER 1.6 requires client consent before the lawyer may notify the ex-employer or its attorney that the lawyer has received privileged or confidential material belonging to the ex-employer. See ER 1.6 Comment ("The confidentiality rule applies . . . to all information relating to the representation, whatever its source."); Ariz. Op. 93-14 (assuming lawyer had a duty to disclose to an adverse party the existence of a tape recording of a conversation between that party and his attorney, "the inquiring attorney must obtain the client's consent" before making disclosure). Moreover, the facts set forth by the inquiring attorney indicate that the ex-employer would terminate the "ally" if his or her actions were discovered. If the lawyer anticipates that the client will be concerned about the "ally's" welfare, ER 1.2(a) also requires the lawyer to seek client consent before taking any action. See ER 1.2(a) Comment ("In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as . . . concern for third persons who might be adversely affected.").
If the client refuses to consent to notification, the considerations discussed earlier dictate that the lawyer still should refrain from examining the documents or making use of the information in them. The Committee's advice in Ariz. Op. 93-14 is not to the contrary. While the Committee concluded that it was ethically permissible for the inquiring attorney to listen to a tape-recording of what appeared to be a privileged conversation, the conversation at issue was between an opposing party in pending litigation and that party's attorney from an earlier lawsuit not involving the client. Additionally, the lawyer had grounds for believing that client's spouse either abandoned the cassette or carelessly had left it at the client's residence, arguably waiving any applicable privilege. Here, in contrast, the communications at issue are between a potentially adverse party and its counsel concerning the client's case and the lawyer has no reason to believe that the ex-employer's conduct has resulted in the waiver of any privilege. In such circumstances, the case for safeguarding the information against improper use is much stronger, especially given the likelihood that a court would rule that the "ally's" misappropriation of the ex-employer's documents did not waive any privilege the ex-employer otherwise would have with respect to them.
If the client refuses to consent to notification, the lawyer would not be required to withdraw from representing her. ER 1.16(a) mandates withdrawal only if "the representation will result in violation of the Rules of Professional Conduct or other law." If the lawyer does not review or make use of the information in the documents, the lawyer's continuing representation of the client will not by itself violate any of the Ethical Rules. See Ariz. Op. 88-08 at 6 (withdrawal not required where client was "suggest[ing], but apparently . . . not demanding" that lawyer listen to tape recording that client had improperly made of a conversation between the opposing party and his lawyer). Withdrawal, however, would be required if the client insists that the lawyer review the documents or use the information in them. Id.
If the client gives her consent and the lawyer notifies the ex-employer or its counsel of the documents' receipt, the lawyer may not disclose the documents' source without the client's consent as such information falls within the scope of ER 1.6(a)'s bar because the lawyer learned that information during the course of the lawyer's representation of the client.
The last issue is whether the lawyer may receive additional documents from the client's "ally." Based on the facts set forth above, the lawyer knows that the "ally" is not authorized to disclose documents to the lawyer and that his or her receipt of those documents can only be the result of the "ally's" deception of others employed by the ex-employer. Once aware of those facts, the lawyer becomes an accomplice to that deception if he or she encourages the "ally" in any way to copy more documents. Such conduct would violate ER 8.4(c), which prohibits a lawyer from "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation." As such, the lawyer should tell his or her client to inform the "ally" that the lawyer will not accept any more copies of the ex-employer's documents.
B. If Client Misconduct Is Involved.
Similar, but not identical, considerations apply if the client solicited the "ally" to obtain the documents or played an illegal or improper role in assisting the "ally" to secure them.
First, the lawyer should refrain from examining or using the materials, both because of the reasons set forth in ABA Formal Op. 94-382 and because of the concern set forth in Ariz. Op. 88-08 that such a review or use would allow the client to benefit from the misconduct and thereby lead the lawyer to violate ER 1.2(d). See ER 1.2(d) ("A lawyer shall not . . . assist a client[] in conduct that the lawyer knows is criminal or fraudulent . . ."). For the reasons stated in ABA Formal Op. 94-382 and subject to client consent (discussed below), the lawyer should notify the ex-employer's counsel about the documents' receipt and then either abide by that counsel's instructions regarding their disposition or retain them pending a resolution of their status by a court.
Second, because the lawyer learned of the documents as a result of the lawyer's representation of the client and because disclosure of the client's misconduct would adversely affect her substantive rights by possibly exposing her to criminal or other legal liability, ERs 1.2(a) and 1.6(a) prohibit the lawyer from notifying the ex-employer or its counsel of the documents' receipt without first obtaining client consent. See Ariz. Op. 88-08 at 9 (without client consent, lawyer may not inform opposing counsel that the client has tape-recorded a privileged conversation between opposing counsel and the opposing party).[8] If the client refuses to give consent, the lawyer may not further examine or use the documents, but the lawyer is not required to withdraw from representing her. See id. at 6 (where client improperly tape-recorded deposition, lawyer was not required to withdraw from representation where the client had not demanded that the lawyer listen to it). If the client consents to notification, ER 1.6 forbids the lawyer from disclosing where he or she got the documents unless the client consents to such a disclosure. See ER 1.2 Comment ("The lawyer is not permitted to reveal the client's wrongdoing, except where permitted or required by ER 1.6"); Lake Havasu Community Hosp., Inc. v. Arizona Title Ins. & Trust Co., 141 Ariz. 363, 376, 687 P.2d 371, 384 (App. 1984) (lawyer retained by insurance company to defend insured cannot reveal to the insurance company information learned from client or during course of engagement that might prejudice insured's right to insurance coverage).
Third, for the reasons given earlier, ER 8.4 bars the lawyer from accepting any more documents from the client's "ally."
Fourth, the lawyer must counsel the client about the possible legal consequences of her conduct and tell her to discontinue it. If she refuses, the lawyer must withdraw from further representation. See ER 1.16(a) ("[A] lawyer . . . where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law"); In re American Continental Corp./Lincoln Savings & Loan Sec. Litig., 794 F. Supp. 1424, 1452 (D. Ariz. 1992) (attorneys must advise clients in a clear and direct manner when the client violated the law, and if the client continues the objectionable activity, the attorney must withdraw).
Fifth, if the client refuses to discontinue the conduct and if the lawyer concludes that her actions will be illegal, ER 1.6(c) allows, but does not require, the lawyer to disclose the client's intention to the ex-employer or other appropriate authorities. ER 1.6 (c) ("A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime."). ER 1.6 (c), however, does not allow such a disclosure if the lawyer believes the conduct is merely "fraudulent" rather than criminal. Id.; cf. Rule 42 of the Rules of the Supreme Court, Terminology ("'Fraud' or 'Fraudulent' denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information."). ER 4.1(b) also does not authorize such a disclosure. Although it prohibits a lawyer from knowingly "fail[ing] to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client," the Rule is qualified by the phrase "unless disclosure is prohibited by ER 1.6." Because ER 1.6(c) authorizes disclosure only of an intention to commit a crime and not merely an intention to commit a fraudulent act, ER 4.1(b) does not authorize the lawyer to disclose the activity without client consent.
CONCLUSIONS
1. The lawyer should (i) refrain from further examination of the documents or from making any use of them, (ii) subject to client consent, notify the ex-employer's counsel of their receipt, and (iii) if such notification is made, either abide by that counsel's instructions as to their disposition or seek a ruling from a court as to whether they may be kept or used.
2. The lawyer may not use the information in the documents unless the ex-employer consents or a court issues a ruling allowing the lawyer to use the information.
3. The lawyer may not continue to accept other such documents in the future. Whether or not the ex-employer's counsel is notified, the lawyer must ask the client to inform the employee that the lawyer will not accept any further documents from the employee.
4. Under the facts presented, the lawyer has an obligation not to use the information without the ex-employer's consent or a court ruling authorizing such use. The steps the lawyer should follow are described above in Conclusion #1. Additionally, if client misconduct was involved in obtaining the documents, the client should be counseled about the possible legal consequences of her conduct and be told to discontinue it.
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[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. Ó State Bar of Arizona 2001
[2] See also Weeks v. Samsung Heavy Indus., Ltd., No. 93-C-4899, 1996 U.S. Dist. LEXIS 7397 at 7-8 (N.D. Ill. May 30, 1996) (granting motion for protective order directing the return of an opposing counsel's billing statement that was obtained through an undisclosed source; endorsing ABA Formal Opinion); Utah Op. 99-01 (Jan. 29, 1999) (discussing ABA Formal Opinion with approval and concluding that under ER 8.4 "an attorney in possession of an opposing party's attorney-client communications for which the attorney-client privilege has not been intentionally waived should advise opposing counsel of the fact of its disclosure, regardless of the specific facts surrounding its disclosure").
[3] See In re Shell Oil Refinery, 143 F.R.D. 105, 108-09 (E.D. La. 1992) (ordering, inter alia, that plaintiff's counsel could not use information that counsel had learned from documents he obtained from a current employee of corporate adversary; counsel's receipt of documents was "inappropriate and contrary to fair play"); Lipin v. Bender, 644 N.E.2d 1300, 1302-05 (N.Y. Ct. App. 1994) (lawyer improperly used privileged materials that the client took from a stack of materials opposing counsel left at conference table at a hearing; affirming dismissal of complaint as a sanction where lower courts had characterized client's and her lawyer's conduct as "a threat to the attorney-client privilege, to the concept of civilized orderly conduct among attorneys, and even to the rule of law").
[4] But see State Compensation Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644, 654-57, 82 Cal. Rptr. 2d 799, 806-08 (1999) (distinguishing Aerojet on the ground that the information at issue in that case was not privileged and generally adopting the standard of ABA Formal Op. 92-368 to require that "whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact"; disposition of document to be governed by agreement or court order).
[5] See, e.g., Md. Op. 89-53 (1989) (Model Code) ("A lawyer who receives from an unidentified source copies of documents belonging to an opposing party has no obligation to reveal the matter to the court or the opposing party. The lawyer should keep copies to avoid destruction of the evidence; however, if the lawyer receives original documents he must attempt to return them to the rightful owner.") (as quoted in ABA Formal Op. 94-382); Mich. Op. CI-970 (Oct. 5, 1983) (Model Code) ("A lawyer who comes into possession of an internal private memorandum of the opposite party during litigation" may use the document at trial for impeachment purposes in civil rights action "provided that the lawyer or client did not procure or participate in the removal of the document"; document at issue was "an internal self-evaluating and critical report by the county's affirmative action officer"); Va. Op. 1076 (1988) (Model Code) ("The [receiving] lawyer may retain, read, and make use of material from his opponent's file that was sent to him by an unknown third party," although opposing counsel should be notified of their receipt as a matter of "professional courtesy"), overruled, Va. Op. 1702 (Nov. 24, 1997) (Model Code) (endorsing ABA Formal Op. 94-382 as "fairly balanc[ing] the competing interests" and overruling earlier opinion; "a 'use whatever you have, no matter how you got it' rule may reflect the rules of the marketplace," but "'[h]igher standards should prevail in the practice of law'").
[6] One member of the Committee dissented from the Opinion, arguing that the Opinion's distinction of ABA Formal Op. 92-368 was "unjustifiabl[e]" and concluding that "[t]he inquiring lawyer should return the tape without listening to it and pursue the matter through proper motion to the court." Ariz. Op. 93-14 at 6.
[7] New York City Bar Ass'n Op. 1989-1 (March 13, 1989) (Model Code) (under Disciplinary Rules, although a lawyer was under an ethical obligation to notify opposing counsel that a client had improperly obtained confidential communications between opposing counsel and that counsel's client, the lawyer was ethically barred from notifying opposing counsel without client consent because "the fact that the inquirer has obtained the documents through an unauthorized interception is a 'secret' within the meaning of DR 4-101(A)"); Philadelphia Bar Ass'n Op. 91-19 (1991) (Model Rules) (without client consent, Rule 1.6(a) "affirmatively prohibits disclosure" to opposing counsel that client had innocently taken a letter written by opposing counsel when it became mixed-up with client's own papers).
[8] The Committee reached a contrary conclusion in Ariz. Op. 80-23 (Oct. 8, 1980), an Opinion that was written before Arizona's adoption of the Model Rules. That Opinion concluded that where a client had secretly copied part of opposing counsel's file without his lawyer's knowledge, Arizona's version of the Model Code required the lawyer to call upon his client to rectify the fraud, and, if the client refused or was unable to do so, the lawyer was ethically required to advise opposing counsel that his file had been copied. In Ariz. Op. 88-08 the Committee concluded that while that Opinion's result may have been correct under Arizona's version of the Model Code, ER 1.6 forbids such a disclosure without client consent. See Ariz. Op. 88-08 at 10.