Opinion considers what an attorney should do with a tape recording given to the attorney by a client when the tape is a recording of telephone conversations made by client's spouse to other individuals including the spouse's former attorney in a prior divorce. The tape was not obtained illegally. The opinion concludes that the attorney may review the contents of the tape, with the client's informed consent and the attorney may have a duty to safeguard the tape and must advise the client of limitations on the attorney's conduct. One dissent.
FACTS
The inquiring attorney represents a client in a dissolution proceeding. The client provided the inquiring attorney with a cassette tape which the client found in the client's community residence. At the time of this discovery, the client had exclusive possession and use of the community residence under the terms of a temporary order. Client's spouse was given a few days in which to get the spouse's possessions out of the community residence prior to the client being given exclusive possession of the residence. The client listened to the tape and has informed the inquiring attorney that it contains recordings of telephone conversations between the spouse and other individuals, including the spouse's previous attorney in the spouse's divorce from the spouse's previous spouse.
The client has asked the inquiring attorney to listen to the tape.
QUESTIONS
1. Is it ethically permissible for the inquiring attorney to listen to the tape? If not, is it ethically permissible for the inquiring attorney to ask the client to provide (either orally or in written form) information contained in the tape?
2. Under the Arizona Rules of Professional Conduct, what should the inquiring attorney do with the tape?
ETHICAL RULES INVOLVED
ER 1.2. Scope of Representation
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs...(d) and (e),...
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(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 1.4. Communication
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
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,...
ER 1.15. Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property...Other property shall be identified as such and appropriately safeguarded...
(b) Upon receiving...other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any...other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
Comment to ER 1.15
A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.
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....
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.
Comment to ER 4.4
Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impracticable to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons.
OPINION
The client's spouse, who is now adverse to the client in a dissolution proceeding, left the cassette tape in the community residence prior to the client's being given possession of the premises pursuant to a court order. It is unclear whether the spouse has a claim to the tape or had abandoned it. The spouse may have left the tape behind inadvertently. On the other hand, the spouse was given a few days to remove any possessions out of the community residence prior to the client moving in, yet left the tape behind. Since the cassette tape came into the client's possession through happenstance, not through improper or illegal means, there would ordinarily not be any reason to prevent the attorney from either listening to the tape or having the client inform the attorney of the contents of the tape.
In reaching this conclusion, it is important to distinguish the facts of this matter from cases where the client has obtained the information illegally or improperly, or where the attorney has obtained clearly confidential or privileged information due to the obvious inadvertence of opposing counsel.
Our Opinion No. 88-08 (October 24, 1988) dealt with illegally or improperly obtained information. We held that the inquiring attorney could not listen to, rely on or otherwise use a tape recording which his client (the wife in a dissolution proceeding) had illegally or improperly obtained. The wife -- without the inquiring attorney's knowledge or consent – had surreptitiously tape-recorded the husband's deposition. The husband's lawyer asked for a break in the deposition to confer with her client. The wife inadvertently left the tape recorder on and recorded the confidential conference between husband and his counsel. Wife later listened to the tape-recorded private conversation and asked the inquiring attorney to listen to it because it contained information highly damaging to both husband and his counsel. We concluded that, if the inquiring attorney were to listen to, rely on or use the tape, he would thereby: (1) violate ER 1.2(d) by assisting the client in conduct that the lawyer knows is criminal or fraudulent, (2) expose the wife-client to possible criminal liability because of the underlying conduct, or (3) breach the confidentiality requirements of ER 1.6.
ABA Formal Opinion 92-368 (November 10, 1992) (ABA/BNA Lawyers' Manual on Professional Conduct, pp. 1001:155-1001:162) involved a lawyer who inadvertently sent materials to another lawyer that appeared on their face to be subject to the attorney-client privilege, or were otherwise confidential. It was also clear from the circumstances that the materials were not intended for the receiving lawyer. The ABA Opinion stated that, under these facts, the inquiring lawyer who had received the materials: (1) should not examine them once the inadvertence was discovered, (2) should notify the sending lawyer of their receipt, and (3) should abide by the sending lawyer's instructions as to their disposition. The ABA Opinion is based on the premise that, when one lawyer has inadvertently disclosed privileged or confidential information to opposing counsel, the sending lawyer's obvious inadvertence should not result in the client's loss of confidentiality.
"...loss of confidentiality is a very high penalty to pay for a mere slip, particularly when the person or entity paying the ‘price' is not the individual lawyer responsible for the inadvertent conduct, but rather the client who presumably had nothing to do with the mis-sending of the materials." (Id. at p. 1001:157)
In the present inquiry, the spouse, not the spouse's attorney, left the tape behind. The spouse either left it behind inadvertently or abandoned it. There is no suggestion of impropriety or illegal conduct. The inquiring attorney should explain to the client that it is based on these facts alone, and the absence of illegal or improper conduct, that the inquiring attorney may listen to the tape which the client has already listened to, or review information from the client about the tape. If the facts were found to be otherwise, for the inquiring attorney to listen to the tape would likely result in the attorney's withdrawal or disqualification. The client should also be informed that, while the inquiring attorney may listen to the tape under these facts, the spouse may none the less raise issues of perceived impropriety or even seek to disqualify the inquiring attorney from the case. This would require the inquiring attorney to spend the time and effort in justifying the client's and the attorney's actions. The answer to the first question, therefore, is “yes” subject to the client's informed consent. ER 1.4(b) ["A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."]
The second question is, under the Arizona Rules of Professional Conduct, what the inquiring attorney should do with the tape. The answer to this question turns on the nature of the information on the tape, the rights of others, and the client's consent to what the attorney proposes to do.
Some of the information on the tape may be confidential. To this extent, the inquiring attorney's use of the tape may be limited. If the spouse inadvertently left the cassette tape behind, such inadvertence would not necessarily waive the attorney-client privilege of the spouse and her former attorney. See, Pennsylvania Bar Association Opinion 92-50 (4/13/92) (ABA/BNA Lawyers' Manual, supra, p. 1001:7315) [attorney who inadvertently received a copy of opposing counsel's letter to his client which included counsel's evaluation of the merits of the case may not use the letter as evidence since inadvertent disclosure did not waive the opposing attorney's client's right to confidentiality]. The existence of the privilege or its waiver, however, is a legal issue that ultimately would have to be resolved by the courts. Legal issues are beyond the purview of this committee. The attorney may, therefore, listen to the tape or review a transcript of it, even that part of the tape that contains the communication between the spouse and spouse's prior attorney. If the inquiring attorney listens to or receives information regarding the communication between the spouse and spouse's prior attorney, the inquiring attorney may subsequently be barred by the courts from using the information because of the nature of the communication. The other conversations on the cassette tape may, however, be used if relevant since those portions of the tape presumably are not subject to the same claim of privilege.
Additionally, the spouse may have a potential claim for return of the tape. If the tape is an original belonging to the spouse, the inquiring attorney may have a duty to return the original to its owner. ER 1.15
Also, to the extent that the tape has potential evidentiary value, the inquiring attorney may not destroy or conceal the evidence, or improperly or unlawfully obstruct the spouse's access to it. ER 3.4
Assuming that the circumstances require compliance with the requirements of ER's 1.15 or 3.4 and 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. Under ER 1.15, the inquiring attorney's duty to deliver property rightfully belonging to a third party is qualified by paragraph (b): "Except as stated in this rule or otherwise permitted by law or by agreement with the client...." See, also, New York City Bar Association Opinion 1989-1 (3/13/89) (ABA/BNA Lawyers' Manual, supra, at p. 901:6410) [lawyer in matrimonial action whose client improperly obtained confidential communications between client's adversary and counsel cannot disclose the fact that he has the documents or turn them over without consent of the client]; Philadelphia Bar Association Opinion 91-19 (undated) (ABA/BNA Lawyers' Manual, supra, at p. 1001:7503) [attorney whose client gave him a copy of a letter from opposing counsel to opposing party that the client inadvertently obtained may not disclose the information to opposing counsel since none of the exceptions to ER 1.6(a) apply]. Under the facts presented, no exceptions to ER 1.6 apply. Hence, the tape cannot be returned to the spouse without the consent of the client.
Assuming that the client were to direct the inquiring attorney not to turn over property that the spouse is entitled to receive, the Comment to ER 1.15 nonetheless provides that the inquiring attorney may have a duty under applicable law (e.g., to protect the spouse's claim to the tape as evidence) to safeguard the property until the issue is resolved so that there is at least no wrongful interference with the rights of a third party. This may require the inquiring attorney to refuse to turn over the tape to the client if the client intends to destroy the tape or otherwise to interfere with the spouse's right to it. The inquiring attorney should advise the client regarding limitations imposed on a lawyer's conduct by ER 1.2(d) and (e), and that ER 1.16(a)(1) requires the attorney's withdrawal if the representation will result in a violation of the Rules of Professional Conduct or other law.
In summary, the inquiring attorney may listen to the tape or review the client's transcript of the tape with the client's informed consent. Should the inquiring attorney listen to the potentially confidential communication between opposing counsel and the spouse, it may or may not be used because of its confidential nature, depending on whether there has been a waiver of the privilege. The inquiring attorney cannot destroy the tape either because it is an original and should be returned to its rightful owner (assuming it was not abandoned), or because it may have potential evidentiary value to the parties and should be preserved as evidence. If the client seeks to interfere with the rights of a third party, the inquiring attorney should advise the client of the limitations imposed by ER 1.2(d) and (e).
DISSENT
One committee member, in dissent, wrote:
The majority opinion, unjustifiably in my mind, distinguishes the situation where a lawyer inadvertently produces confidential information to an adversary in a discovery response (ABA Formal Opinion 92-368) from the situation under consideration on the grounds that it is not clear that the item was inadvertently left behind and that it was an act of the client and not the lawyer that created the situation. Since I do not believe that the underlying assumption or the ultimate conclusions are warranted, and I believe that confidentiality concerns should predominate, I dissent with respect to question #1. The inquiring lawyer should return the tape without listening to it and pursue the matter through proper motion to the court. (See McNeil and Littlefield, The Inadvertent Disclosure of Privileged Documents, Arizona Attorney, November, 1993, pages 11-16 and 34). Since I believe that the inquiring attorney had a duty to return the item in question, I also dissent with respect to question #2.
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.
©State Bar of Arizona 1993