Can a government lawyer use privileged corporate documents that a whistleblowing former employee leaked to a regulator, with no government involvement in taking them?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A corporate manager copied corporate documents without authorization, some apparently privileged, and after leaving the company gave copies to a regulatory board on his own initiative. The board investigated, found a regulatory violation, directed the corporation to comply, and passed the documents to a government lawyer (GL) with enforcement power. By the time GL received them, board personnel had already examined and relied on them. Although the leaked information was no longer needed to prove liability, the violation probably would not have come to light without it. GL asked whether he could use the information and documents in a contemplated civil enforcement proceeding.
The committee assumed no government employee was involved in the informant's acquisition or delivery of the documents, that the board broke no law in receiving them, and that some documents were privileged. It acknowledged a split among courts and ethics committees on a lawyer's duty regarding confidential documents received inadvertently, contrasting ABA Formal Opinion 92-368 (avoid reviewing and return them) with cases requiring or permitting use. The only Massachusetts authority, International Digital Systems, applied the rule that disclosure waives the privilege as to the disclosed documents because confidentiality is lost.
Although these documents were not disclosed inadvertently by the corporation, the committee found the result the same as to GL: once agency personnel read them, the information was no longer confidentially held. So long as no legal restriction barred the agency from receiving or using them, a substantive-law question outside the committee's jurisdiction, the committee saw no reason GL should be forbidden to use what the agency could use. It distinguished ABA Op. 92-368 by pointing to countervailing public interests: the informant was a former employee seeking to prevent corporate wrongdoing, the board had already used the documents to start an investigation, and government lawyers have a duty to investigate and prosecute violations. Given the wide and assumed-lawful dispersion of the documents, the committee found no ethical obligation requiring GL to refrain from examining or to return them absent a court order. Because GL intended to inform the corporation of his possession when proceeding, the committee saw no need to decide whether disclosure was required, noting the corporation could then move regarding return or use.
Currency note
This opinion was issued in 1994, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Could the government lawyer use privileged documents a whistleblower leaked to the agency?
A: Yes, on these facts. The committee concluded the Disciplinary Rules did not bar GL from possessing and using the documents, privileged or not, where the leak came from a former employee with no government involvement and agency staff had already reviewed them.
Q: Did the documents being privileged change the answer?
A: No. The committee reasoned that once agency personnel read the documents the information was no longer confidentially held, analogizing to the Massachusetts rule that disclosure waives the privilege as to disclosed documents.
Q: Did the lawyer have to tell the corporation he had the documents?
A: The lawyer said he would inform the corporation when he proceeded with the civil action, so the committee did not decide whether disclosure was required; that procedure let the corporation make any motions about return or use.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 4-101 (protection of confidences and secrets), corresponding to Model Rule 1.6, in a setting that also implicates a lawyer's handling of another party's privileged materials, addressed today under Model Rule 4.4. It discussed ABA Formal Opinion 92-368 and Massachusetts and out-of-state case law on inadvertent disclosure and waiver.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.6 / DR 4-101 (confidentiality)
- Model Rule 4.4 (respect for the rights of third persons; documents of another)
Cases:
- International Digital Systems Corp. v. Digital Equipment Corp., 120 F.R.D. 445 (D. Mass. 1988) (inadvertent disclosure waives privilege)
- Aerojet-General Corp. v. Transport Indemnity Ins., 18 Cal. App. 4th 996 (1993); NLRB v. Monfort, Inc. (use of inadvertently received materials)
Other opinions cited:
- ABA Formal Opinion 92-368 (lawyer should avoid reviewing and return inadvertently sent documents)
See also
- MA Bar Ethics Op. 99-4: A misdirected privileged letter
- MA Bar Ethics Op. 94-9: Bond counsel to the state and conflicts with other agencies
Source
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