An attorney who’s offered discovery evidence by a former employee of an opposing party that was purposely concealed can’t simply thank the former employee and take it, the L.A. County Bar Association’s ethics committee has advised.
There are competing “difficult” legal, ethical, and policy considerations that the attorney has to wrestle with before taking any action, the committee said in a recent opinion.
An initial concern for the attorney should be whether the former employee legally obtained the data, it said, as the attorney may have an ethical obligation to turn stolen information over to law enforcement.
If the attorney instead takes it or encourages the client to take it, this would be a violation of ethics rules prohibiting lawyers from engaging in criminal conduct or counseling a client to engage in conduct the lawyer knows is illegal, according to the new opinion.
An attorney who’s not sure whether the former employee is in legal possession of the proffered information should consult with another attorney who’s competent to make that determination, the committee noted.
And even if the information was obtained legally , it still may be privileged or protected by confidentiality.
It’s okay for the attorney to meet with the unrepresented former employee to find out how they got the data, but the attorney can’t look at it or ask detailed questions about it in case this is the situation, the committee said.
A “prudent” attorney should refrain from examining the data any more than necessary to determine whether privilege applies, and if it does, notify the proper person such as the privilege holder, it said.
However, the committee said that sometimes evidence originating from an opposing party doesn’t trigger concerns about “ethical impropriety.”
In one California case, for instance, the state court concluded that an attorney may have a professional obligation to use non-privileged facts gleaned from a privileged memorandum of the opposing counsel for the benefit of the client.
The lawyer’s duties to the client also include diligent representation, requiring the lawyer to to further investigate what’s in the data, the committee said.
And if the client’s worried about the legality of how the data was acquired and wants the lawyers to look into it, the lawyer is obligated to keep the client reasonably informed regarding any developments, it said.
This could include discussing the “financial impact, legal costs and delay resulting from any battle over the entitlement to the evidence, the possibility of disqualification, the potential loss of the counsel of client’s choice, and the possibility of evidence preclusion or other forms of sanctions that could be incurred,” the committee said.
The opinion concluded that any lawyer facing a situation similar to this one “should conduct a thorough analysis before accepting possession of or reviewing any evidence whose provenance is uncertain.”
The opinion is Los Angeles Cty. Bar Ass’n Prof’l Responsibility & Ethics Comm. Op. 531, 7/24/19.