In litigation, be wary of the gift horse.

A few weeks ago, the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee issued Opinion 531.  The opinion addresses this question:

  • “In Litigation, What Are A Lawyer’s Ethical Obligations When Offered Evidence Retained By A Former Employee Of The Opposing Party Who Reveals That Relevant Documents Have Been Concealed From Production?”

The ABA Journal and Bloomberg Law reported on the opinion.

Here’s the scenario:

  • Lawyer represents Company in civil claim against Business.
  • Company contends that Business stole trade secrets from Company.
  • Former Employee of Business contacts Company.
  • Former Employee says that Business has withheld important documents and data from production.
  • Former Employee says that documents & data will establish that Business possesses and has used Company’s trade secrets.
  • Former Employee claims to possess electronic copies of the documents & data.
  • Company asks Lawyer to meet with Former Employee and take possession of the electronic copies.

And here’s an outline of the LA Bar Committee’s analysis:

  1. Lawyer must determine whether Former Employee lawfully possesses the data.  If not, and if Lawyer takes possession of it, Lawyer might be required to turn the data over to the appropriate authorities as evidence of a crime.
  2. Lawyer must determine whether the data constitutes information that Lawyer knows or should know is privileged or work product.  If so, Lawyer may not take possession of the data and must notify Business or its attorney.
  3. If Former Employee is not represented, Lawyer may communicate with Former Employee but must comply with the rule on dealing with unrepresented persons.
  4. Lawyer must consult with Company as to the means by which Lawyer will pursue Company’s objectives, including any limitations that the Rules of Professional Conduct place on Lawyer’s conduct.
  5. Lawyer may not advise or assist Company to violate the law or to gain unauthorized access to information that is privileged or work product, but may advise Company as to the consequences of Company’s proposal that Lawyer (and Company) take possession of the data.

Obviously, the opinion is based upon California legal authority, including various opinions from California courts & the state’s version of the Rules of Professional Conduct.  I’ve never dealt with this in Vermont and have not yet fully thought through my response if it were to happen here.

That being said, in my opinion, critical to the analysis is the fact that the data was not inadvertently produced.  As such, on its face, V.R.Pr.C. 4.4(b) does not apply.  Indeed, Comment [2] to Vermont’s rule states:

  • “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.”

Rather, to me, the California opinion addresses what is often referred to as “purloined information.”  It’s not a simple issue.  Indeed, the annotation to ABA Model Rule 4.4(b) includes two pages of cites to decisions, advisory opinions, and law review articles that address a lawyer’s duties upon the “fortuitous receipt” of information that may or may not be privileged and may or may not have been improperly obtained.

Earlier this year, The Colorado Lawyer published Handling Electronic Documents Purloined by a Client. I recommend the article and suspect it might ring familiar to family law practitioners.  It “considers ethical issues raised when a client in pending litigation forwards her lawyer electronic documents that the client obtained without permission from the opposing party’s computer.”

Anyhow, I’m blathering.  I’m not convinced that there’s an absolute prohibition on possessing and attempting to use nonprivileged information fortuitously received.  Nevertheless, there are likely some gift horses worth looking in the mouth.  If the issue arises here, contact me for a confidential discussion of a lawyer’s duties under Vermont law, including both the Rules of Professional Conduct and the Rules of Civil Procedure.

Finally, I’m only in Season 2, but something tells me that Jessica Pearson and Harvey Specter wouldn’t need an advisory opinion to proceed.

Image result for jessica pearson and harvey specter