September 7, 2007
A lawyer whose client has provided the lawyer with documents that were wrongfully obtained by the client may need to consult with a criminal defense lawyer to determine if the client has committed a crime. The lawyer must advise the client that the materials cannot be retained, reviewed or used without informing the opposing party that the inquiring attorney and client have the documents at issue. If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation.
RPC: 4-1.2(d), 4-1.4, 4-1.6, 4-1.16(a)(1), 4-3.4(a), 4-4.4(a), 4-4.4(b), 4-8.4(a), 4-8.4(c), 4-8.4(d)
Opinions: 93-3; ABA Formal Opinion 94-382; ABA Formal Opinion 06-440; ABA Formal Opinion 05-437; Connecticut Opinion 96-4; New Jersey Opinion 680; New York City Opinion 1989-1
Cases: Anderson v. State, 297 So.2d 871 (Fla. 2d DCA 1974); Florida Bar v. Hmielewski, 702 So.2d 218 (Fla. 1997); Moldonado v. New Jersey, Administrative Office of the Courts - Probation Division, 225 F.R.D. 120 (D. N.J. 2004); Perna v. Electronic Data Systems, Corporation, 916 F.Supp. 388 (D.N.J. 1995); Quinones v. State, 766 So.2d 1165 (Fla. 3d DCA 1974)
A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in the inquiring attorney's letter are as follows:
I represent the petitioner/wife in a dissolution of action currently pending in [local county], Florida. Wife maintains a small professional space within an office owned by a company in which her husband is a 50% shareholder. Prior to separation of the parties, wife frequently utilized husband’s corporate office space for printing, copying, computer use, etc. Since separation, wife is no longer welcome to use these amenities unsupervised or after hours. It has come to my attention that my client has done the following: (1) Removed documents from husband’s office prior to and after separation; (2) Figured out husband’s computer and e-mail password and, at his office, printed off certain documents, including financial documents of the corporation, husband’s personal documents and e-mails with third parties of a personal nature, and documents or e-mails authored by husband’s attorney in this action; (3) Accessed husband’s personal e-mail from wife’s home computer, and printed and downloaded confidential or privileged documents; and (4) despite repeated warning of the wrongfulness of wife’s past conduct by this office, removed documents from husband’s car which are believed to be attorney-client privileged.
Wife has produced to my office certain documents listed in 1-3 above, which production alerted me to this issue. This office has not reviewed those documents believed to contain attorney-client privileged information and immediately segregated those documents and any copies in a sealed envelope. Wife claims that she is not in possession of any other documents subject to 1-3 above, and that she did not review those that contain reference to husband’s attorney.
I believe documents removed from husband’s car referenced in 4 above, which may be attorney-client privileged, are in the custody of wife, who claims she has not reviewed the document, but contacted counsel upon discovery of potentially confidential material.
I have reviewed the Florida and ABA opinions and contacted the Florida Bar Hotline. It does not appear that any cases specifically address obligations of disclosure to opposing counsel wherein one party obtained the documents in a potentially illegal manner. The cases appear to be limited to cases of inadvertent disclosure by the revealing party. I am unsure of my obligation of disclosure and/or to return the documents to husband’s counsel without violating my obligation of confidentiality and representation to my client, and request a written staff opinion regarding same.
Rule 4-4.4(b) provides that “[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” In an opinion predating the adoption of Rule 4-4.4(b),Florida Ethics Opinion 93-3, this committee came to the same conclusion.
However, the instant facts are distinguishable from the typical scenario involving inadvertent disclosure of privileged documents. There was no inadvertent disclosure. Rather, the materials were deliberately obtained by inquiring attorney’s client without the permission of the opposing party. The comment to Rule 4-4.4(b) mentions such situations, but does not provide substantial guidance:
Subdivision (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, "document" includes e-mail or other electronic modes of transmission subject to being read or put into readable form.
Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See rules 4-1.2 and 4-1.4.
The American Bar Association formerly had an ethics opinion addressing a lawyer’s duties when the lawyer receives confidential information from someone who is not authorized to release the information. In Formal Opinion 94-382, the ABA Standing Committee on Ethics and Professional Responsibility determined that an attorney who receives an adverse party's confidential materials from someone who is not authorized to disclose them should refrain from reviewing the materials and either contact opposing counsel for instructions or seek a court order allowing the recipient to use them. The ABA recently withdrew that opinion in Formal Opinion 06-440, deciding that Opinion 94-382 was not supported by the rules, especially ABA Model Rule 4.4(b) which is the equivalent of Florida Rule 4-4.4(b). Specifically, the ABA committee stated:
As was noted in Formal Opinion 05-437, Rule 4.4(b) requires only that a lawyer who receives a document relating to the representation of the lawyer's client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. The Rule does not require refraining from reviewing the materials or abiding by instructions of the sender. Thus, even assuming that the materials sent intentionally but without authorization could be deemed "inadvertently sent" so that the subject is one addressed by Rule 4.4(b), the instructions of Formal Opinion 94-382 are not supported by the Rule.
It further is our opinion that if the providing of the materials is not the result of the sender's inadvertence, Rule 4.4(b) does not apply to the factual situation addressed in Formal Opinion 94-382. A lawyer receiving materials under such circumstances is therefore not required to notify another party or that party's lawyer of receipt as a matter of compliance with the Model Rules. Whether a lawyer may be required to take any action in such an event is a matter of law beyond the scope of Rule 4.4(b).
Accordingly, because the advice presented in Formal Opinion 94-382 is not supported by the Rules, the opinion is withdrawn in its entirety.
Therefore, neither Rule 4-4.4(b) nor Opinion 93-3 directly govern the inquiring attorney’s situation.
The Comment to Rule 4-4.4(b) states that the rule does not address the legal duties of a lawyer who receives documents that were wrongfully obtained. Similarly, under the Florida Bar Procedures For Ruling on Questions of Ethics it is beyond the scope of an advisory ethics opinion for this committee to resolve legal issues, such as whether the inquiring attorney has a legal duty (independent of any duty the client may have) to return the documents to their owner. Nor can this opinion resolve the legal question of whether the client’s conduct violated any criminal laws. However, to merely refer the inquiring attorney to the comment to Rule 4-4.4(b) and point out that there are legal issues to be resolved does a disservice to the inquiring attorney. While there are legal issues that this committee cannot resolve, there is ethical guidance that can be provided. Further, for the purposes of this guidance, it will be presumed that, whether or not the client’s conduct was illegal, it was improper. If the client’s conduct was rightful and proper the inquiring attorney would not be seeking guidance.
While Rule 4-4.4(b) does not govern the inquiring attorney’s quandary, other rules are applicable. One such rule is Rule 4-1.6, the ethical duty of confidentiality. This rule states, in part:
(a) Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.
(b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent a client from committing a crime; or
(2) to prevent a death or substantial bodily harm to another.
(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to serve the client's interest unless it is information the client specifically requires not to be disclosed;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(5) to comply with the Rules of Professional Conduct.
The confidentiality rule makes any information relating to the representation of a client confidential, whatever the source. Comment, Rule 4-1.6. It is broader than the attorney-client privilege. Thus, under the rule, an attorney cannot voluntarily reveal any information relating to the representation of a client unless the client consents or an exception to the rule is applicable.
Another rule that is applicable to the inquiring attorney’s situation is Rule 4-3.4(a). This rule states:
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act;
Still other rules are applicable. Rule 4-4.4(a) prohibits a lawyer from knowingly using “methods of obtaining evidence that violate the legal rights” of third persons. Rule 4-1.2(d) prohibits a lawyer from assisting a client in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. Rule 4-1.4 requires lawyers to fully advise clients. Rule 4-8.4(d) prohibits lawyers from engaging in conduct that is prejudicial to the administration of justice. Rule 4-8.4(a) prohibits a lawyer from violating the rules through the acts of another.
Additionally, while there is no formal opinion in Florida providing guidance in a situation such as that facing the inquiring attorney, there is at least one disciplinary case that touches on the issues presented by the inquiring attorney. In The Florida Bar v. Hmielewski, 702 So. 2d 218 (Fla. 1997) an attorney represented a client in a wrongful death claim alleging medical malpractice arising from the death of the client’s father. After the attorney was retained, but before suit was filed, the client told the attorney that he had taken some of his father’s medical records from the hospital involved and showed the attorney the records. In discovery, the attorney asked the hospital to produce the records, which it could not. The hospital, in its own discovery request, asked for the production of any medical records the client had. The attorney did not disclose the records. The attorney stated to the court that one of the issues in the case was the hospital’s failure to maintain the records, the attorney submitted an expert report that the hospital tampered with its medical records even though the attorney knew the expert’s opinion was based on the expert’s belief that the hospital failed to maintain the records, and made other misrepresentations. After the fact that the client took the records came out during the client’s deposition, the court sanctioned the client and the attorney and filed a bar complaint against the attorney.
The Florida Supreme Court upheld the referee’s findings based on the above facts:
The referee recommended that Hmielewski be found guilty of violating the following Rules Regulating The Florida Bar: (1) rule 3-4.3, which proscribes conduct that is unlawful or contrary to honesty or justice; (2) rule 4-3.3(a)(1), which prohibits knowingly making false statements of material fact or law to a tribunal; (3) rule 4-3.3(a)(2), which prohibits failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (4) rule 4-3.4(a), which prohibits both the unlawful obstruction of another party's access to evidence and the unlawful altering, destruction or concealment of a document or other material that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding, or counseling or assisting another person to do such an act; (5) rule 4-3.4(d), which prohibits the intentional failure to comply with legally proper discovery requests; (6) rule 4-4.1(a), which mandates that lawyers not make false statements of material fact or law to third persons while representing a client; (7) rule 4-4.4, which prohibits the use of methods of obtaining evidence that violate the rights of third persons; and (8) rule 4-8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.
The referee recommended that Hmielewski be suspended from the practice of law for one year followed by two years of probation, noting that the character and reputation testimony presented on Hmielewski's behalf was the primary mitigating factor that saved Hmielewski from disbarment.
“A referee's findings of fact carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record.” Florida Bar v. Berman, 659 So.2d 1049, 1050 (Fla.1995). We find support in the record for the referee's factual findings. These findings establish that Hmielewski improperly allowed what he perceived as his duty to his client to overshadow his duty to the justice system when he made deliberate misrepresentations of material fact to the Mayo Clinic and the Minnesota trial court. Hmielewski's violations made a mockery of the justice system and flew in the face of Hmielewski's ethical responsibilities as a member of The Florida Bar.
702 So. 2d at 220. The court suspended the attorney for three years.
Clearly, under Hmielewski, the inquiring attorney cannot make any misrepresentations about the documents, including in response to any discovery requests regarding the documents. Nor can the inquiring attorney make the documents, including the opponent’s failure to produce them or have them in his custody, a feature of the case without disclosing that the inquirer has the documents. However, Hmielewski did not address what the attorney should have done when the attorney first learned that the client obtained the documents.
Other jurisdictions also have addressed the issue of a lawyer’s responsibilities when the lawyer’s client improperly gets confidential or privileged documents of the opposing party. Connecticut Opinion 96-4 states that an attorney whose client improperly obtained a release of the client’s spouse’s medical records may not permit the client to copy or view the records and must return the records to the records custodian unless a proper release is signed. New Jersey Opinion 680 (1995) dealt with a situation where opposing counsel came to the work place of another attorney’s clients to examine documents during discovery. When both opposing counsel and the client’s own attorney took a lunch break, the client went through a stack of the opposing attorney’s papers and made copies of them. When the attorney was told of the client’s action, he sought the ethics opinion. The attorney did not come into possession of any of the documents. As stated in the New Jersey opinion:
The nub of the problem posed by the inquiry lies with the fact that the clients gained access, without permission, to private, confidential documents of adversaries in litigation. Two of the principals of the client are not in accord as to the precise circumstances by which this access was gained, but in any event it was unauthorized.
No Rule of Professional Conduct directly deals with this specific situation, nor does any prior opinion of this Committee. Neither RPC 3.4 (Fairness to Opposing Party and Counsel) nor RPC 4.1 (Truthfulness in Statements to Others) clearly and directly reaches the situation posed by the inquirer. Further, while under RPC 4.1(a)(2) in some circumstances a client's seizure of evidence in the hands of an adversary certainly could constitute "a criminal or fraudulent act," we do not have enough evidence to draw such a conclusion here. Similarly, on the facts presented, the lawyer did not "use methods of obtaining evidence that violate the legal rights of such a [third] person," under RPC 4.4, as the actions were taken by a client.
Nonetheless, the client's reading of the adversary's documents was distinctly inappropriate and improper, constituting a clear invasion of privacy at the very least. If the lawyer had committed the acts ascribed to the clients, and items of evidence were involved, it would constitute a violation of RPC 4.4. It is well established that an attorney may not do indirectly that which is prohibited directly (see RPC 8.4(a)), and consequently the lawyer cannot be involved in the subsequent review of evidence obtained improperly by the client. Furthermore, the conduct of inquirer's client may have been of benefit to that client in the litigation. For a lawyer to allow a client's improper actions taken in the context of litigation to benefit that client in such litigation would constitute "conduct that is prejudicial to the administration of justice" under RPC 8.4(d). Only disclosure to the adversary will avoid the prejudicial effect proscribed by this rule, and thus this situation falls within those in which disclosure of confidential information is permitted by RPC 1.6(c)(3) in order "to comply with other law." Mere withdrawal from representation, without disclosure, will not reverse the prejudicial conduct.
The incident that formed the basis of New Jersey Opinion 680 is also the subject of Perna v. Electronic Data Systems, Corporation, 916 F. Supp 388 (D. N.J. 1995). In that case, the court sanctioned the partner who viewed and copied the opposing parties documents by dismissing the partner’s individual claims. Of the conduct of the partner’s attorneys, the Court noted that the attorneys did not engage in any misconduct and applauded their decision to seek ethical guidance. 916 F.Supp at 394, footnote 5.
In another case from New Jersey, Maldonado v. New Jersey, Administrative Office of the Courts –Probation Division, 225 F.R.D. 120 (D. N.J. 2004), a plaintiff who was employed as a probation officer filed a discrimination lawsuit against his employer and two individual probation officers. Prior to the lawsuit, the plaintiff filed an administrative claim with the New Jersey Division on Civil Rights (NJDCR). The NJDCR proceeding resulted in a finding of probable cause. The two individual probation officers named wrote a letter on October 7, 2001 to their attorney regarding the credibility of the witnesses interviewed in the NJDCR matter. At a later date in 2001, a copy of the letter came into the possession of the plaintiff. The plaintiff claimed someone put it in his workplace mailbox. The defendants suspected that the plaintiff took it from one of the individual defendant’s office, but were unable to prove this. The plaintiff gave the copy of the letter to his attorneys. Information from the letter was used by the attorneys in the original civil complaint filed in October 2003. However, defense counsel did not notice this until the amended complaint was reviewed in a meeting between plaintiff and defense counsel in the spring of 2004. Defense counsel then filed a motion for protective order, to dismiss the plaintiff’s complaint as a sanction or alternatively to disqualify the plaintiff’s attorneys.
The court found that under the circumstances, the attorney client and work product privileges were not waived. The court further declined to dismiss the plaintiff’s case, in part because it was not proven that the plaintiff intentionally took the letter. However, the Court did order the disqualification of the plaintiff’s attorneys:
In sum, the record before the Court shows the following: 1) Maldonado's present counsel had access to privileged material since at least October 3, 2003; 2) counsel reviewed and relied on the October 7th letter in formulating Maldonado's case; 3) the letter was highly relevant and prejudicial to Defendants' case; 4) counsel did not adequately notify opposing counsel of their possession of the material; 5) Defendants took reasonable precautions to protect the letter and cannot be found at fault for the disclosure; and 6) Maldonado would not be severely prejudiced by the loss of his counsel of choice.
* * *
Both Matos and Hodulik did not adhere to the “cease, notify, and return” mandate of the New Jersey Supreme Court's Advisory Committee on Professional Ethics [Opinion 680] and the New Jersey Rules of Professional Conduct. The Court's decision, however, rests more appropriately on the prejudicial effect that the disclosure of the October 7th letter has on Defendants' case. This sanction is drastic; yet, in disqualification situations any doubt is to be resolved in favor of disqualification. Therefore, the Court finds that the appropriate remedy to mitigate the prejudicial effects of counsels' possession, review,*142 and use of the letter is the disqualification of Matos and Hodulik.
225 F.R.D. at 141-142.
The Association of the Bar of the City of New York in its Ethics Opinion1989-1 addressed the issue of an attorney’s obligations when a spouse in a matrimonial case intercepted communications between the other spouse and that spouse’s attorney. The New York Committee came to a somewhat different conclusion than New Jersey, based on the duty of confidentiality to the client:
Where the inquirer has not suggested or initiated the practice in any way, the question to be resolved is whether any ethical obligations or prohibitions constrain the inquiring attorney's use of the copied communications. The Committee concludes that, regardless of whether the lawyer counseled the client to engage in this conduct or even knew that the client was so engaged, it would be unethical for the lawyer to use any intercepted communications to advance the client's position unless and until the lawyer (i) has disclosed to adversary counsel the fact that the documents have come into the lawyer's possession and (ii) has provided copies to adversary counsel. Even if the lawyer does not intend to make affirmative use of the documents, the lawyer must promptly disclose his possession of the documents and return them or copies of them. Because the intercepted communications were received by the lawyer in the course of the professional relationship, however, the lawyer may not make such disclosure without the consent of the client. DR 4-101(B). If the client refuses to permit disclosure or the return of the documents to the adversary, the lawyer must withdraw from the representation. DR 2-110(B).
Application to the Inquiring Attorney’s Query
The inquiring attorney is in possession of certain categories of documents that the client either (1) removed from the husband’s office, (2) printed from the husband’s computer, including financial documents and emails, or (3) accessed on her own computer with the husband’s password. The inquiring attorney segregated and has not reviewed any documents that the inquirer believes contain attorney-client privileged information. By implication, this means the inquiring attorney has reviewed documents that the inquirer believed not to be privileged.
Additionally, the inquiring attorney also states that the client removed documents from the husband’s vehicle, and that the inquiring attorney believes these documents are privileged. The inquiring attorney is not in possession of this latter category of documents. Rather, the client has them and says she has not reviewed the documents.
As noted earlier in the opinion, this Committee is not authorized to decide questions of law, including whether the inquiring attorney has a duty to return or disclose the documents in the inquirer's possession. However, there can be circumstances where a lawyer would have an obligation under the law to return or disclose the documents. For instance, a lawyer would have to produce the documents in response to a valid discovery request for the documents. See Rule 4-3.4(d) (prohibits intentional failure to comply with legally proper discovery requests) and The Florida Bar v. Hmielewski, 702 So. 2d 218 (Fla. 1997). If the documents themselves were stolen property, the lawyer may also have an obligation under substantive law to turn over the documents. See Quinones v. State, 766 So. 2d 1165, 1172 n.8 (Fla. 3d DCA 2000) ("The overwhelming authority in the nation concludes that an attorney may not accept evidence of a crime unless he or she makes the same available to the prosecutor or the investigating law enforcement agency.") and Anderson v. State, 297 So. 2d 871, 875 (Fla. 2d DCA 1974) (lawyer acted properly by surrendering evidence of a crime to police, and state cannot disclose circumstances in court).
Even if there is no duty under substantive law to disclose or return the documents, the inquiring attorney still has ethical obligations. The inquiring attorney owes the client the duty of confidentiality under Rule 4-1.6. Under this rule, a lawyer may not voluntarily reveal information relating to the representation of a client without the client's consent. Therefore, information which the inquiring attorney learns through the representation of the client is confidential under Rule 4-1.6, and cannot be revealed without the client's consent. There are exceptions to the duty of confidentiality. However, none seem to be applicable under the facts presented, as any criminal act that the client may have been involved in is a past act and disclosure would not prevent a future crime.
On the other hand, the inquiring attorney cannot assist the client in conduct that the inquiring attorney knows or reasonably should know is criminal or fraudulent under Rule 4-1.2(d). Additionally, the inquiring attorney cannot engage in conduct involving dishonesty or that is considered prejudicial to the administration of justice under Rules 4-8.4 (c) and (d) and cannot violate the ethics rules through the acts of another, including the client, under Rule 4-8.4(a). Furthermore, Rule 4-3.4(a) provides that a lawyer must not “unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.”
The inquiring attorney needs to discuss the situation, including the ethical dilemma presented due to the client’s actions, with the client. If the client possibly committed a criminal act, it may be prudent to have the client obtain advice from a criminal defense attorney if the inquiring attorney does not practice criminal law. The inquiring attorney should advise the client that the inquiring attorney is subject to disqualification by the court as courts, exercising their supervisory power, may disqualify lawyers who receive or review materials from the other side that are improperly obtained. See, e.g., Maldonado v. New Jersey, Administrative Office of the Courts –Probation Division, 225 F.R.D. 120 (D. N.J. 2004). The inquiring attorney should also advise the client that the client is also subject to sanction by the court for her conduct. See Perna v. Electronic Data Systems, Corporation, 916 F. Supp 388 (D. N.J. 1995).
Finally, the inquiring attorney must inform the client that the materials cannot be retained, reviewed or used without informing the opposing party that the inquiring attorney and client have the documents at issue. See The Florida Bar v. Hmielewski, 702 So. 2d 218 (Fla. 1997). If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation. See Rule 4-1.16(a)(1).