April 22, 2020 Feature

Evidence from Third Party Creates Legal and Ethical Issues

Section leaders urge caution when presented with evidence from non-party

By C. Thea Pitzen

Imagine you represent the plaintiff company in a civil lawsuit for theft of trade secrets. A corporate officer of your client tells you he has been approached by a former employee of the defendant company who claims the company is withholding important documents from discovery. This former employee further claims to have a copy of data that shows the defendant’s possession and use of your client’s trade secrets. Your client asks you to meet with this former employee and take possession of the data. At first glance, your situation may seem enviable. But the Los Angeles County Bar Association (LACBA) cautions that the lawyer in this position “is faced with competing public policy considerations and difficult ethical and legal issues.”

Don't be tempted by the offer of evidence from a third party.

Don't be tempted by the offer of evidence from a third party.

Photo illustration by Elmarie Jara | iStockphoto by Getty Images

Lawyer Must Consider Potential Criminal Issues and Privilege Concerns

The LACBA Professional Responsi-bility and Ethics Committee considered the scenario described above, and the resulting Opinion No. 531 advises attorneys to answer two key questions in this situation. First, the lawyer must determine whether the former employee is lawfully in possession of the data. If the answer is no, and the lawyer nevertheless takes possession of the data or encourages his client to do so, the lawyer may be either engaging in unlawful conduct or advising his client to do so—both of which violate applicable ethics rules.

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