Receiving Confidential Documents from an Unauthorized Source: A Lawyer’s Ethical Duties
by Fred C. Moss
Client hands Lawyer a confidential document that Client admits was purloined from the opposing party. The document helps Client’s case. Assuming the document’s owner is unaware of the theft, what are Lawyer’s ethical duties? Must Lawyer refuse to accept the document? Must Lawyer notify the owner’s attorney? Must Lawyer use the document to Client’s advantage? Who decides, Lawyer or Client?
These vexing questions confront Texas lawyers probably more than ever since documents can be easily misappropriated on a thumb drive. Unfortunately, no Texas ethics rule or ethics opinion addresses these questions. Arguably, however, guidance may be found in the case of In re Meador, 968 S.W.2d 346 (Tex. 1998).
In Meador,defendant’s employee covertly copied defendant’s privileged documents and gave them to plaintiff and her counsel. Plaintiff’s counsel did not notify defendant’s lawyer. When the theft was discovered, the trial court ordered plaintiff and her counsel to return the documents and not use them in the litigation. The trial court, however, refused to disqualify plaintiff’s counsel. The Court of Appeals granted defendant’s mandamus petition, citing ABA Formal Ethics Opinion 94-382 (1994) as the appropriate standard of conduct that plaintiff’s counsel had violated.
The Supreme Court reversed the Court of Appeals, ruling that the trial court did not abuse its discretion in refusing to disqualify plaintiff’s counsel. In so holding, the Supreme Court discussed both ABA Opinion 94-382 and the duties of lawyers who receive material from an unauthorized source. The Court noted that “no specific Texas disciplinary rule applies to the circumstances of this case.”
ABA Opinion 94-382 advised that, when a lawyer receives confidential or privileged material that was obtained from an opponent by an unauthorized source, the lawyer should 1) refrain from reviewing it further; 2) notify the opponent’s lawyer; and either 3) follow the opponent’s instructions, or 4) refrain from using the material until a court rules on its proper disposition.
The Supreme Court held that:
Discovery privileges are an integral part of our adversary system. By protecting attorney-client communications and an attorney's work product, they encourage parties to fully develop cases for trial . . . . Thus, a lawyer who uses privileged information improperly obtained from an opponent potentially subverts the litigation process.
. . .
[W]e . . . agree . . . that ABA Formal Opinion 94–382 represents the standard to which attorneys should aspire in dealing with an opponent's privileged information.The ABA's approach reflects the importance of the discovery privileges, and ensures that the harm resulting from an unauthorized disclosure of privileged information will be held to a minimum. (In re Meador, 968 S.W.2d. at 351.)(Emphasis added.)
However, after adopting Model Rule of Professional Responsibility 4.4(b) in 2002, the ABA withdrew Op. 94-382. Rule 4.4(b) addresses inadvertently sent information and imposes upon the receiving lawyer only a duty to notify the sender. The ABA’s ethics committee felt there was no basis in the Model Rules to support Op. 94-382’s additional requirements. See ABA Opinion 06-440. Guidance on what a lawyer should do upon receiving unauthorized material not inadvertently sent, the Committee said, must be found outside the Rules.
While Texas has not adopted Model Rule 4.4(b), it is an open question whether the adoption in 1999 of Texas Rule of Civil Procedure 193.3(d), the “claw back” rule, is inconsistent with Meador. Rule 193 does not require the recipient of inadvertently sent privileged information to notify the sender. This may signal that a Texas court likewise would not require the recipient of stolen information to do so.
However, receiving inadvertently sent material is not the equivalent of receiving stolen material. Theft and receiving stolen property are crimes. Moreover, Rule 193 applies only to litigation discovery, whereas the purloined property problem can arise in non-litigation contexts. Therefore, even if Rule 193 prevents the application of Meador to inadvertently sent discovery, it does not necessarily affect the duties of the recipient of stolen property, particularly in non-litigation situations.
The use of stolen privileged information subverts the lawyer-client privilege and lawyer-client relationships. Allowing the use of such information creates an incentive to steal and puts everyone at risk of having their privileged and confidential information used against them. On receiving an opponent’s stolen property, Texas lawyers should consult ABA Op. 94-382 and Meador for guidance.
Fred Moss taught legal ethics at the SMU Dedman School of Law until he retired in 2009. He is a member of the State Bar’s Committee on the Rules of Ethics. The opinions expressed are his alone. He can be reached at firstname.lastname@example.org.