Oregon State Bar Bulletin — JULY 2012

Bar Counsel
Ill-Gotten Gains:
Rules for Privileged or Purloined Documents

By Helen Hierschbiel

Last month’s column touched on the issue of a lawyer’s obligations upon receipt of inadvertently sent information or documents. One of the challenges is determining whether materials are in fact inadvertently or purposefully sent. Assuming the documents were inadvertently sent, the rules of professional conduct dictate only that the receiving lawyer promptly notify the sender. Oregon RPC 4.4(b). While the rules do not answer the more difficult question of what a lawyer may or must do with those documents, they at least open the discussion of whether some privilege or privacy right attaches to the documents and give the sending lawyer the opportunity to take action to protect the confidentiality of the documents.

But what of the situation where a lawyer comes into possession of privileged or private documents not through opposing counsel, but through one’s own client or a third party? May or must the lawyer notify opposing counsel? What if the documents were unlawfully obtained? These questions are the topic of two new ethics opinions and of this month’s column.

Scenario 1

After a former employee files a retaliation lawsuit against her employer, the employer copies the contents of the former employee’s workplace computer for possible use in defending the lawsuit, and provides copies to its outside counsel. Upon review, the employer’s counsel sees that some of the employee’s emails bear the legend “Attorney-Client Confidential Communication.”

Must the employer’s counsel notify the employee’s lawyer that the employer has accessed this correspondence? May the employer’s lawyer review or use the emails in the litigation?

This scenario is posed and addressed by ABA Formal Op No 11-460. At the outset, the opinion notes that the emails obtained in this situation were not “inadvertently sent” by the employer, the employee or the employee’s lawyer. As a result, Model Rule 4.4(b) does not expressly apply to the situation. While some courts have interpreted Rule 4.4(b) to implicitly address such a situation, the ABA Standing Committee on Ethics and Professionalism declined to do so. See ABA Formal Op Nos 06-440 and 11-460. Similarly, Oregon RPC 4.4(b) does not expressly apply to this scenario, and the Oregon State Bar Legal Ethics Committee has declined to extend RPC 4.4(b) to a situation where documents were sent purposely, regardless of the private nature of the communications. See OSB Formal Op No 2011-186.

Moreover, no other ethics rules provide a clear, independent, basis for requiring disclosure. So where do lawyers look for the answer? ABA Formal Op No 11-460 offers the following analytical framework.1 First, consider whether court procedural rules or orders exist that would require the employer to notify the employee that it has gained possession of the employee’s attorney-client communications. If so, failure to comply with the relevant rules or orders could subject the lawyer to disciplinary sanctions. See, e.g., RPC 3.4(c).

Second, the opinion notes that the fact that the employer-client has obtained copies of the employee’s emails is “information relating to the representation of a client” that must be kept confidential under RPC 1.6(a) absent either client consent or some other exception under RPC 1.6(b). If a rule or court order requires disclosure, then the employer’s lawyer may disclose confidential information to the extent reasonably necessary to comply with the relevant law. See RPC 1.6(b)(6). If, on the other hand, a client demands that the lawyer not make a disclosure that is required by rules or court order, the lawyer must withdraw from the representation because continuing the representation would result in a violation of the Rules of Professional Conduct. RPC 1.16(a).

Even if no court rule or order applies, the employer’s lawyer may seek client consent to disclose. In advising the employer-client about whether to consent to disclosure, the lawyer should discuss the implications of disclosure, including whether the privileged communications can be used in the litigation, and the risks of disqualification or other sanctions if the court ultimately concludes that the employer’s possession of the material violates the employee’s rights.

Whether the employer’s lawyer may use the materials is not discussed in ABA Formal Op No 11-460 but depends on the underlying substantive law of privilege and waiver. While the Supreme Court has acknowledged that employees may have an expectation of privacy in their office environment generally, O’Connor v. Ortega, 480 US 709, 718 (1987), the extent to which that expectation of privacy applies to email correspondence from a work computer and whether any attorney-client privilege in such communications is waived is a highly fact-specific inquiry that is determined on a case-by-case basis. Cf, US v. Simons, 206 F3d 392 (4th Cir 2000)(no expectation of privacy where employer had a policy of auditing computer use and the employee did not claim unawareness of the policy) and Leventhal v. Knapek, 266 F3d 64, 74 (2d Cir 2001)(reasonable expectation of privacy existed where employee had own computer and employer had not placed employee on notice that there was no reasonable expectation of privacy and had no established practice to routinely check computer use).

Prior to undertaking the above analysis, lawyers should be careful not to review the documents any more than necessary to determine whether they may be subject to the attorney-client privilege. The risk of disqualification or other sanction cannot be overemphasized as a real and practical concern outside of those presented by the rules of professional conduct. See, e.g., Richard v. Jain, 168 FSupp2d 1195 (WD Wa 2001)(lawyer disqualified for retaining and using privileged materials); Maldonado v. New Jersey, 225 FRD 120 (DNJ 2004)(plaintiff’s counsel who reviewed privileged letter, received from unknown source, and without permission incorporated it by reference in amendment to complaint disqualified).

Scenario 2

Meanwhile, unbeknownst to the employer, the former employee has used the password given to her while employed to access her former employer’s network and has downloaded all email correspondence of the company’s general counsel, human resources director and chief executive officer. She provides the USB drive to her lawyer for use in the lawsuit.

Must the employee’s counsel notify the employer’s lawyer that client has copied the material?

No. In this scenario, unlike the previous one, the client has obtained the documents without lawful authority. In fact, the employee’s conduct may very well constitute a crime. See ORS 164.377 and Computer Fraud and Abuse Act 18 USC 1030 and Stored Communication Act 18 USC 2701. A lawyer who learns information that links a client to a crime is ordinarily prohibited from disclosing that information to others. See RPC 1.6(a) and OSB Formal Ethics Op No 2011-186. Employee’s counsel should not accept the USB drive if counsel determines it is stolen property; lawyers may only accept stolen property if they are accepting it for the purpose of returning it to the victim of the crime. OSB Formal Ethics Op No 2005-105. Instead, employee’s counsel should inform the client of the illegality of the conduct and recommend, if appropriate, that the client seek advice from a criminal defense lawyer.

While the documents in this scenario may have been unlawfully obtained, they could very well include information that is not private or privileged and is therefore discoverable. Lawyers who are having trouble obtaining documents through traditional means of discovery may be tempted to review the documents. Although it does not say so expressly, the clear message of OSB Formal Op No 2011-186 is that one should not succumb to such temptation. If the possibility of being implicated in criminal misconduct is not enough risk, consider again whether disqualification or other sanctions from the court are a possibility. See, e.g., Beiny v. Wynyard, 522 NYS2d 511 (NY App Div 1987)(lawyer who obtained privileged documents through intentional misconduct ousted from case.)

Scenario 3

The (former) employee’s lawyer receives documents from an anonymous source that show extensive OSHA violations by the employer and its efforts to cover it up. The employer has failed to turn over the documents in discovery, despite the fact that they were requested and are in fact discoverable.

Must the lawyer disclose receipt of the documents to the employer’s counsel? May the employee’s lawyer review and use the material provided?

In this scenario, it is unclear whether the documents were lawfully obtained, but it seems apparent that they were disclosed without authorization since the employer has refused to turn them over despite discovery requests. Even so, the documents are not subject to privilege or any other privacy concern since they are, according the scenario facts, discoverable. Consequently, lawyer is entitled to have them and may therefore review and use the material provided.

The answer to whether the lawyer is required to disclose receipt of the documents is again not found in the rules of professional conduct. It may be appropriate to disclose the fact of receipt as a matter of strategy or professionalism. However, recall that the fact of receipt is “information relating to the representation of a client” and is therefore protected against disclosure under RPC 1.6(a) without client consent. Consequently, lawyers should discuss the matter with the client prior to making a decision about whether to disclose.

Helen Hierschbiel is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by email at hhierschbiel@osbar.org.

Ethics opinions are published and updated on the bar’s website at www.osbar.org/ethics/toc.html.

Endnote

1. While not binding in Oregon, ABA Formal Opinions offer valuable guidance in interpreting Oregon’s Rules of Professional Conduct because the Oregon RPCs mirror the ABA Model Rules in many respects. 

 

ABOUT THE AUTHOR
Helen Hierschbiel is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by email at hhierschbiel@osbar.org.

Ethics opinions are published and updated on the bar’s website here.

An archive of Bar Counsel articles is available here.


© 2012 Helen Hierschbiel

return to top
return to Table of Contents