If a lawyer receives an opposing party's privileged document that a third party may have stolen or taken without authorization, may the lawyer review and use it?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 318 (adopted December 2002) extends the Committee's earlier Opinion 256 (on inadvertently disclosed privileged documents) to a new situation: a temporary employee of a corporate party obtained a privileged document, by theft or without authorization, and gave it to the opposing party, whose litigation counsel reviewed it and filed it with an administrative tribunal. The document was not marked "privileged" or "confidential," but its first page showed it came from the entity's inside counsel to its management and addressed legal questions relevant to the dispute. The matter settled before the admissibility fight was resolved, but the inquirer asked about the ethics of receiving counsel's use of the document.
Working from the ethics rules' emphasis on confidentiality (Rule 1.6, including the Rule 1.6(e) duty to guard against disclosure by those the lawyer works with), zealous representation (Rule 1.3), and fair dealing with opposing counsel (Rule 1.15(b), which requires notifying and returning property in which others have an interest), the opinion sets out the rule. A lawyer cannot solicit or encourage anyone to obtain documents unlawfully. If a lawyer receives a document that is privileged on its face, has a reasonable basis to conclude the privilege was not waived, and knows it was obtained without authorization, the lawyer may violate Rules 1.15(b) and 8.4(c) by reviewing or using it. But the rules are violated only if the lawyer acts "knowingly," and knowledge can be inferred from suspicious circumstances (for example, a client who hands it over "with a wink"). The opinion draws on the rule that a privilege is generally not waived by an involuntary disclosure where the client took reasonable precautions (In re Grand Jury Proceedings Involving Berkeley & Co., 466 F. Supp. 863 (D. Minn. 1979); Restatement section 129), and aligns with ABA Formal Op. 94-382 while noting some state opinions reach the opposite result.
The opinion then states the safe side: a lawyer does not violate Rules 1.15(b) and 8.4(c) by reviewing and using a document of unknown source if its privileged status is not readily apparent on its face and the lawyer did not know it came from someone unauthorized to disclose it. And if the privileged status becomes apparent only after the lawyer has already reviewed the document, it is too late to act, because the information cannot be purged from the lawyer's mind, and at that point the Rule 1.3 duty of zealous representation prevails. The opinion takes no position on confidential-but-non-privileged documents. Finally, it stresses that counsel (inside or outside) responsible for protecting privileged documents that get "leaked" may themselves violate Rules 1.1 and 1.6 by failing to use reasonable care.
In practice
Under the D.C. rules as they stood at the time of the opinion, the opinion concludes that receiving counsel must, before reviewing, refrain from reading or using a document when its privileged status is apparent on its face, the lawyer knows it came from an unauthorized source, and there is no reasonable basis to think the privilege was waived; the lawyer should return it to opposing counsel or inquire about its source and status. The test is whether the lawyer acted "knowingly," which can be inferred from suspicious circumstances.
The opinion concludes the lawyer is not subject to those restraints where the document is not facially privileged or where the lawyer did not know of the unauthorized source, and that once such a document has already been reviewed before its privileged nature appeared, the duty of zealous representation prevails. It also concludes that a lawyer charged with safeguarding privileged documents may violate Rules 1.1 and 1.6 if a failure of reasonable care lets the documents leak. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: My client handed me the other side's privileged memo that an employee took. Can I use it?
A: The opinion concludes that if the document is facially privileged, you know it came from someone not authorized to disclose it, and you have no reasonable basis to think the privilege was waived, you may not review or use it; you should return it or ask opposing counsel about its status.
Q: What if the document does not look privileged?
A: The opinion concludes that reviewing and using a document of unknown source does not violate the rules if its privileged status is not readily apparent on its face and you did not know it came from an unauthorized source.
Q: What if I only realize it is privileged after I have read it?
A: The opinion concludes it is then too late to act, because the information cannot be purged from your mind, and at that point the Rule 1.3 duty of zealous representation prevails.
Q: Can the lawyer whose document leaked be at fault?
A: The opinion concludes yes. Counsel responsible for protecting a privileged document may violate Rules 1.1 and 1.6 by failing to exercise reasonable care to prevent its unauthorized disclosure.
Background and rules framework
The opinion interprets D.C. Rule 1.15(b) (safekeeping property; notifying and returning property in which others have an interest), Rule 8.4(c) (dishonesty), Rule 1.6 (confidentiality, including the Rule 1.6(e) duty to guard against disclosure by those the lawyer supervises), Rule 1.1 (competence), and Rule 1.3 (diligence and zeal), turning on the Terminology definition of "knowingly." It builds on D.C. Opinion 256 and ABA Formal Opinions 92-368 and 94-382, and on the involuntary-disclosure waiver analysis in Berkeley and Restatement section 129.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.15(b) / Model Rule 1.15 (safekeeping property; notice and return)
- D.C. RPC 8.4(c) / Model Rule 8.4(c) (dishonesty)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; safeguarding against disclosure)
- D.C. RPC 1.1, 1.3 / Model Rules 1.1, 1.3 (competence; diligence and zeal)
Cases:
- In re Grand Jury Proceedings Involving Berkeley & Co., 466 F. Supp. 863 (D. Minn. 1979) (privilege not waived by theft where reasonable precautions taken)
- In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989) (inadvertent disclosure and waiver, reserving the third-party-theft question)
Other opinions cited:
- D.C. Ethics Op. 256 (inadvertently disclosed privileged documents)
- ABA Formal Opinions 92-368 and 94-382; Restatement of the Law Governing Lawyers section 129
See also
- ABA Formal Op. 06-440: Unsolicited Receipt of Privileged or Confidential Materials
- ABA Formal Op. 11-460: Receiving a Third Party's Email With Counsel Copied
- DC Ethics Op. 341: Review and Use of Metadata in Electronic Documents
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-318
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