Beware of Strangers Bearing Gifts: The Perils of Purloined or Privileged Evidence
LACBA Update, April 2014
By Robert K. Sall, who practices with Sall Spencer Callas & Krueger in Laguna Beach and is a past chair of the LACBA Professional Responsibility and Ethics Committee. His practice focuses on business litigation, legal malpractice litigation, and attorney-client fee disputes. He can be reached at email@example.com. The opinions expressed are his own.
As recounted in Virgil's Aeneid, the gift of the wooden horse brought an unexpected end to the Trojan War. Sometimes, in litigation, gifts come with a price. Most evidence is derived through the legitimate process of discovery, yet evidence may also arrive in nontraditional ways such as the anonymous delivery of documents or the appearance of a third-party witness who offers a hard drive containing materials relevant to your case.
In these situations ethical perils abound. Should you take possession of the physical evidence if offered? May you review the gift of electronic data? Depending on the nature of the materials, the risks may run the gamut from exclusion of evidence, disqualification of counsel, civil liability, or sanctions to possible criminal prosecution.
The first dilemma facing counsel is whether to take possession of proffered evidence. One consideration should be to ascertain whether the witness obtained possession lawfully. The determination of that question may have significant consequences. While possession may be nine-tenths of the law, it by no means resolves the ethical dilemmas.
The person offering the evidence may have committed a crime. The material itself may be contraband. It could be a crime for the lawyer to receive or examine the evidence. The first line of inquiry should almost always consider whether the proffered material was lawfully obtained or is the fruit or instrumentality of a crime.
Assume a situation where the witness bearing gifts is a former employee of an adverse party. The witness possesses a hard drive he or she is willing to share, and suggests to you that it contains explosive evidence for your case. Was the hard drive taken from the employer without permission? Is the drive itself stolen property? What about the data contained on the drive? Was it lawfully copied? Does it contain confidential trade secrets, protected attorney-client communications, or the work product of adverse counsel?
Assume a truly extreme example—The disk contains child pornography. While in some cases this may be relevant evidence, the mere possession of such contraband is a crime.1 For a less salacious example, the disk drive itself may be stolen property wrongfully acquired by the witness. Will the lawyer who takes possession of the material be committing the crime of receipt or concealment of stolen property?2
Similarly, the act of knowingly accessing or using without permission the electronic data of another may be a crime under Penal Code Section 502. This statute also authorizes a civil action for its violation, including an award of attorney’s fees. Liability may also arise under federal law, such as the Computer Fraud and Abuse Act.3
Lawyers facing this situation have a number of conflicting considerations, and must be concerned with the foreseeable consequences to himself or herself as well as the foreseeable consequences to his or her client. The lawyer may also be concerned with the legal obligations and potential consequences involving the witness. In this situation, it may be prudent for the lawyer to explicitly refrain from giving the witness any advice regarding the propriety of possession of the material, and to counsel only that the lawyer does not represent the witness.4 If the lawyer in this situation undertakes to give legal advice to the witness, California Rule of Professional Conduct 3-310 may be implicated, and serious conflicts of interest may exist.
Lawyers naturally have a duty to refrain from criminal conduct. An act of moral turpitude, dishonesty, or corruption is ground for disbarment.5 Likewise, an attorney may not counsel or advise a violation of law.6
Even if one determines the evidence is not contraband and was lawfully obtained by the witness, there may still be critical questions as to whether the lawyer may lawfully review or use the materials. An attorney’s duty is to maintain only such actions as appear to him or her to be legal or just.7 An attorney has the obligation not only to protect the client’s interests but also “to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.”8
California case law over the past 15 years has established an ethical duty not to invade the work product and privileged communications of other parties and their counsel. In State Compensation Fund v. WPS, California first recognized an express duty that a lawyer who receives privileged communications through inadvertence of another should refrain from examining the materials more than is essential to ascertain if they are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged.9 The parties may then proceed to resolve the situation by agreement, or may resort to the court for guidance, protective orders, or judicial intervention.10
Since 1999, the State Compensation Fund rule has been refined and extended. In Rico v. Mitsubishi, the stop and notify requirements were specifically described as an “ethical duty.”11 There, the lawyer came into possession of work product of the adverse party and used it to further his representation of his client. The California Supreme Court concluded that disqualification was warranted because the lawyer examined the documents far more than was necessary to determine that the contents were confidential.
More recently, in Clark v. Superior Court,12 the court held that disqualification was appropriate where a lawyer received privileged materials that had been delivered to the lawyer by his own client, who received them through his employment and was initially entitled to possess them. The lawyer did not discontinue his review upon discovering the materials were likely to be privileged, and did not notify the opposing counsel of his receipt or possession.
In its recent Formal Opinion 2013-188, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct opined that where a lawyer receives anonymous communication of a letter that appears privileged on its face—but is informed by the sender that the letter will prove a fraud has been perpetrated by the adverse party with the advice and assistance of his counsel—the attorney still may not review the letter, notwithstanding the potential application of the crime-fraud exception to attorney-client privilege.13 Although the conclusions reached in this nonbinding opinion remain controversial, it provides a thoughtful analysis of relevant authorities regarding the proper and improper handling of privileged documents, and the potential criminal implications to lawyers.
In the facts above, and assuming that witness’s possession of the disk was lawful, it is still unknown whether the disk drive contains privileged or confidential information. If, upon preliminary review, the materials facially appear to be confidential, the lawyer who reviews them substantively takes significant risk of disqualification or sanctions. The trend in these cases seems to be that duty to discontinue review and notify opposing counsel exists in all cases where a lawyer comes into possession of materials that appear to be privileged or confidential. Extreme caution is dictated in any case where a lawyer comes into possession of materials of the adverse party that may have been unlawfully obtained, or even if properly obtained, may contain privileged or confidential information. Thus, the mere fact that a witness may lawfully have obtained the initial possession of such materials does not necessarily place them up for grabs.
1 See 18 U.S.C. §2252 (it is a crime in certain cases to knowingly receive, possess, view or reproduce materials containing sexually explicit images of a minor).
2 Penal Code §496 (a) criminalizes the receipt or concealment of stolen property, and subsection (c) provides for civil action against the recipient, treble damages, and an award of attorney’s fees.
3 Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq.
4 Butler v. State Bar, 42 Cal. 3d. 323, 329 (1986) (the lawyer’s duty to communicate includes communication to persons who reasonably believe that they are clients, at least to the extent of advising them that they are not clients).
5 Bus. & Prof. Code §6106.
6 See Cal. Rules of Prof'l Conduct R. 3-210 (providing that a member shall not advise the violation of any law unless the member believes in good faith that the law is invalid).
7 Bus. & Prof. Code §6068(c).
8 Kirsch v. Duryea, 21 Cal. 3d. 303, 309 (1978).
9 State Compensation Fund v. WPS, 70 Cal. App. 4th. 644 (1999).
10 Id. at 656-57.
11 Rico v. Mitsubishi, 42 Cal. 4th. 807 (2007).
12 Clark v. Superior Court, 196 Cal. App. 4th. 37 (2011).
13 Evid. Code §956 (no attorney-client privilege exists if the services of the lawyer were sought to enable or aid anyone to commit or plan to commit a crime or fraud).
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked "Confidential" to Member Services at firstname.lastname@example.org.