Can I use the document my client gave me?
Your client brings you a document and tells you they found it, read it, and it contains information about their pending matter. Can you use this document or the information the client learned from it?
First, you should determine how the client obtained the document at issue. If the document was obtained properly, you may review or use the document or information in any legally or ethically prescribed manner. If, however, you determine after consultation with the client that the document was obtained improperly, then Florida Ethics Opinion 07-1 advises seeking advice from a criminal defense lawyer to determine whether the client may have committed a crime.
Case law provides examples of improperly obtained information. In Castellano v. Winthrop, 27 So. 3d 134 ( Fla. 5th DCA 2010), a lawyer was disqualified after filing a petition to vacate a final order of modification alleging fraud on the court by the father after using information obtained on a USB drive that the client gave to the lawyer that belonged to the opposing party. The court also required the firm to remove all the information from the firm’s and the client’s computers, have a third party inspect to ensure the information has been removed at the firm’s expense, provide a list of all persons who had access to the information, and indemnify the opposing party if the opposing party had any damages from improper use of the information. In The Florida Bar v. Black, 121 So.3d 1038 (Fla. 2013), a lawyer failed to return the opposing party’s cell phone which was given to the lawyer by the lawyer’s client. The opposing party had requested the return of the cell phone and indicated that there were attorney-client communications on the cell phone (both between opposing counsel and opposing party and opposing party and his own clients as opposing party was also a lawyer). Instead, the lawyer hired an expert to determine whether the cell phone had been altered. A consent judgment was entered in which the court approved the referee report and publicly reprimanded the lawyer. The lawyer was also disqualified from the civil case.
If you determine the information was obtained improperly, Florida Ethics Opinion 07-1 advises that you should discuss the situation, including the ethical dilemma presented due to the client’s actions, with the client. You should advise the client that you are potentially 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., Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010). You should also advise the client that the client is also potentially subject to sanction by the court. See also Perna v. Electronic Data Systems, Corporation, 916 F. Supp 388 (D. N.J. 1995).
Finally, you must inform the client that the materials cannot be retained, reviewed, or used without informing the opposing party that you 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 under those circumstances, you must withdraw from the representation. See Rule Regulating The Florida Bar 4-1.16(a)(1). If the client consents to disclosure, you may continue the representation. However, if you do not want to review or use the information, you may continue the representation, but could still be subject to disqualification or other sanction.
In sum, it is prudent for you to determine if a document given to you by a client was obtained properly. If a document is obtained properly, there is no ethical dilemma in using the document or information in any legally or ethically prescribed manner. However, if you know or reasonably should know that a document was obtained improperly, you should follow the guidance in Florida Ethics Opinion 07-1.