Stolen Case Info Creates Ethics Haze for Lawyers
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.
Click on the link to continue reading “Thanks for the Headache” online in the March ABA Journal.
