SCRUPLES: Accessing an Adversary’s Emails

Vol. 40 No. 3

The author is with Armstrong Teasdale LLP, St. Louis. He also teaches legal ethics at Washington Universi ty School of Law.

“Remember when we represented Jay in that partnership dispute against Kaye several months ago?” Paradox asked, settling into a chair across from Ethox. “Sometimes we felt Kaye’s lawyer Nemesis could predict our next move. And now we know how.”

“Really?” Ethox queried.

“Early in the litigation, perhaps even before Jay and Kaye started fighting, Kaye was reading Jay’s emails—even our legal advice to Jay. Kaye probably shared all our plans with Nemesis.”

 

“That could be serious, especially for Kaye,” Ethox agreed. “Hacking into an email account may violate federal law. How did Kaye get access?”

“Why should that matter?” Paradox responded. “Kaye and Nemesis are both going down hard.”

“I’m not so sure,” Ethox countered. “It sounds like there are at least two unknowns that you need to learn.”

“Really?” Paradox was surprised.

“First,” Ethox explained, “you need to learn how Kaye obtained access to the emails. If Kaye’s access was authorized—for example, if Jay gave Kaye the password—this might make Kaye’s access lawful, perhaps even after the fight began. Also, authorizing Kaye’s access may abrogate any privilege claim Jay could otherwise make about the emails.

“Second,” Ethox continued, “you need to learn Nemesis’s involvement in Kaye’s actions. If Kaye’s access was improper and Nemesis encouraged or assisted Kaye, Nemesis may have violated ABA Model Rules 1.2(d) and 8.4(a) and (b) by assisting criminal conduct and committing a criminal act through another’s acts. Nemesis may have also violated Rule 4.4(a), by obtaining evidence—the emails—in violation of Jay’s rights, including Jay’s expectation the emails would remain confidential. But . . . .”

“If Kaye acted independently of Nemesis,” Paradox completed Ethox’s thought, “Nemesis may not be responsible for Kaye’s conduct, and Rules 1.2 and 8.4 would not apply.”

“Precisely!” Ethox beamed.

“But why didn’t Nemesis warn us about Kaye’s actions?” Paradox pressed. “Don’t the rules require notice?”

“Not exactly,” Ethox responded. “Rule 4.4(b) requires a lawyer to give notice to a party who inadvertently produces privileged information. But there was no ‘inadvertent’ production here. Either Jay authorized Kaye’s access, or Kaye hacked in. And absent an ‘inadvertent’ disclosure, Rule 4.4(b) does not apply.

“Moreover,” Ethox continued, “Nemesis’s obligation to keep Kaye’s confidences under Rule 1.6 may have prevented Nemesis from telling us that Kaye was accessing Jay’s emails. When Nemesis learned what Kaye was doing, it was information relating to Nemesis’s representation of Kaye. If Kaye’s access was authorized, then Kaye was doing nothing wrong and could expect Nemesis to keep Kaye’s actions confidential.

“Alternatively, if Kaye was accessing Jay’s email unlawfully, then,” Ethox finished, “Kaye may have committed a crime. Rule 1.6 would then probably require Nemesis to keep this confidential as well, because Kaye’s actions here probably do not fit all the requirements for Nemesis to disclose under Rule 1.6(b)(1) to (3). So Nemesis probably needed Kaye’s consent to tell us that Kaye was accessing Jay’s emails.”

“Kaye would have never given consent in such hard-fought litigation,” Paradox murmured, “but it’s unseemly for Nemesis to sit back and get all our strategy from Kaye.”

“Even if Kaye’s access was authorized,” Ethox said, “Nemesis could have refused to use the emails in the litigation. Rule 4.4(b) comment [3] suggests that such a tactical decision would normally be up to the lawyer—not the client.”

“I guess I need to find out what really happened,” Paradox sighed.

“I would be happy to help you,” Ethox offered. “How about right after lunch?”

“Perfect. How about an early lunch?” Paradox quipped.

Laughing, Ethox resumed reading the transcript.

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