What should litigators do upon receiving potentially useful, probative documents that may have been misappropriated or wrongly given to them? This is one of litigators’ hardest ethics questions.
A New Jersey lawyer faced this question in a wrongful death lawsuit that he brought for a deceased patient’s estate against a hospital and its doctor. Before trial, the lawyer received an envelope addressed to him containing copies of the hospital’s documents. The hospital had created the documents under a state law requiring it to report and investigate adverse events at the hospital. The law also provided that privilege protected documents created during the process.
The estate’s lawyer knew that the documents might be privileged (as they turned out to be) and that the sender probably lacked authority to provide them (as also turned out to be true). But the documents were helpful.
Should he (1) return or destroy the documents; (2) notify the hospital and, if appropriate, litigate the question whether they may be used; or (3) study the documents, tell no one, and use them to the client’s advantage at the most propitious moment? The lawyer took the last course. The court found it was the wrong one, leading to the lawyer’s disqualification, which the appeals court upheld. Jablow v. Wagner, 2015 N.J. Super. Unpub. LEXIS 778 (N.J. Super. Ct. App. Div., Apr. 8, 2015).
The court found that the lawyer violated Rule 4.4(b) of the New Jersey Rules of Professional Conduct, which requires a lawyer to notify the sender upon receiving “inadvertently sent” documents. The New Jersey rule is based on Rule 4.4(b) of the ABA Model Rules of Professional Conduct, which the ABA interprets more narrowly. According to ABA Formal Opinion 11-460 (2011), Model Rule 4.4(b) does not apply when documents are intentionally provided to a lawyer, even if improperly. It applies only to documents provided inadvertently—e.g., emails sent to the lawyer accidentally or privileged documents negligently produced in the course of discovery. Opinion 11-460 relied on both the language of Rule 4.4(b) and the accompanying comment, which states that “this Rule does not address the legal duties of a lawyer who receives a document . . . that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person.”
Other law may apply when questionable documents are intentionally given to a lawyer—for example, criminal law forbidding possession of stolen property, statutes protecting the privacy of electronic information, or tort law forbidding one from assisting another’s breach of a fiduciary duty. Many courts have issued opinions pursuant to their supervisory authority establishing further limits on the receipt or use of questionable documents. As the cases illustrate, the question has endless variations. Sometimes:
- The documents are privileged on their face (though the lawyer may have an argument that the privilege was waived because it was not adequately protected).
- The documents, though misappropriated, appear to be unprivileged and potentially available through ordinary discovery.
- The documents reveal serious wrongdoing.
- The documents are provided in violation of criminal law, or in breach of fiduciary duty.
- The documents are sent anonymously.
- The client, rather than a third party, is the source.
- The documents are originals.
The opinions are hard to codify or summarize, both because different judges have reached different conclusions about where the lines are drawn and because so many factors go into the equation.
Given the legal and ethical uncertainty, what should a litigator do upon receiving potentially helpful documents that may be unlawful for the lawyer to possess and use? For starters, research whether it is legal to obtain, keep, and use the documents. Some judges have pointed out the wisdom of obtaining advice from a legal ethics expert before using questionable documents. See, e.g., United States v. Kubini, 304 F.R.D. 208, 224 (W.D. Pa. 2015).
The voices in your head will no doubt engage in heated debate between silence and disclosure if the documents are extremely helpful “smoking guns.” If the legal question is a close one, Opinion 11-460 says, “the lawyer need not risk violating a legal or ethical obligation” but may disclose to opposing counsel that the document was received. Then the lawyer may litigate the propriety of its use. In criminal cases, prosecutors conducting an investigation or trial often ask a separate “taint team” to review potentially privileged documents to ascertain and litigate whether they may properly be used. Privately retained trial counsel may ask a separate law firm to serve a similar function so that trial counsel will not be disqualified if it turns out that the documents in question are “tainted.”
A prudent lawyer receiving questionable documents should handle them with care. Although, of course, saying that only betrays the difficulty of the question.