Can a North Carolina lawyer agree to an 'attorney eyes only' protective order that keeps discovery material from the lawyer's own client?

Plain-English summary

The opinion addresses a lawyer in a wrongful-discharge action who can obtain sensitive discovery (including other employees' personnel files) only by agreeing to a stipulated protective order with an "attorney eyes only" provision, under which opposing counsel may designate material that the lawyer cannot share with the client. The lawyer reasonably believes the material is necessary to represent the client effectively and worries that refusing the restriction will delay or defeat production.

The committee concludes the lawyer may agree. Rule 1.2(a)(3) allows a lawyer to "exercise his or her professional judgment to waive or fail to assert a right or position of the client," so a lawyer may accept information under an "attorney eyes only" condition if the lawyer determines doing so is in the client's best interest and consistent with applicable law. The opinion says the lawyer should consider whether such a restriction is appropriate in the specific matter and, if it is reasonably necessary to obtain relevant materials, may accept the condition while negotiating for the least restrictive disclosure requirement.

The opinion adds cautions. An "attorney eyes only" restriction may create a Rule 1.7(a)(2) conflict, because the lawyer's representation could be materially limited by the lawyer's responsibilities to opposing counsel under the agreement; the committee flags this especially in criminal cases, where the agreement could conflict with the client's statutory or constitutional rights to information. The lawyer must promptly inform the client of the discovery agreement under Rule 1.4, and if the lawyer and client cannot agree on the means to accomplish the client's objectives and cannot reach a mutually acceptable resolution, the lawyer may need to withdraw (Rule 1.2, cmt. [2]).

In practice

Under the North Carolina rules as they stood at the time of the opinion, a lawyer may accept an "attorney eyes only" protective order, relying on the professional judgment authority in Rule 1.2(a)(3), where the lawyer concludes the restriction is reasonably necessary to obtain relevant material and serves the client's best interest. The opinion directs the lawyer to evaluate whether the restriction fits the specific matter and to consider negotiating for the least restrictive disclosure requirement.

The opinion identifies a Rule 1.7(a)(2) conflict concern, because the lawyer's duties to opposing counsel under the agreement could materially limit the representation, and singles out criminal matters where the restriction could collide with the client's rights to information. Per the opinion, the lawyer must promptly inform the client of the agreement under Rule 1.4, and withdrawal may be required (Rule 1.2, cmt. [2]) if the lawyer and client cannot agree on the means.

Common questions

Q: Can a North Carolina lawyer agree to keep "attorney eyes only" discovery from the client?

A: Yes. The opinion concludes that under Rule 1.2(a)(3) a lawyer may exercise professional judgment to accept information under an "attorney eyes only" restriction if doing so is in the client's best interest and consistent with applicable law.

Q: When is accepting the restriction appropriate?

A: When the lawyer concludes it is reasonably necessary to obtain relevant material to represent the client effectively. The opinion advises considering whether the restriction is appropriate for the specific matter and negotiating for the least restrictive disclosure requirement.

Q: Does an "attorney eyes only" agreement create a conflict?

A: It can. The opinion concludes the restriction may create a Rule 1.7(a)(2) conflict because the lawyer's responsibilities to opposing counsel under the agreement may materially limit the representation, a concern the opinion highlights in criminal cases.

Q: Does the lawyer have to tell the client about the agreement?

A: Yes. The opinion concludes the lawyer must promptly inform the client of the discovery agreement under Rule 1.4, and may need to withdraw if the lawyer and client cannot agree on the means (Rule 1.2, cmt. [2]).

Background and rules framework

The opinion interprets Rule 1.2 (Model Rule 1.2, scope of representation and allocation of authority). Rule 1.2(a)(3), a North Carolina addition, allows a lawyer to exercise professional judgment to waive or fail to assert a client's right or position, which the committee applies to a lawyer's decision to accept discovery under an "attorney eyes only" condition. Comment [2] addresses what happens when the lawyer and client disagree about the means of the representation. Rule 1.7(a)(2) (Model Rule 1.7) defines a conflict where the representation may be materially limited by the lawyer's responsibilities to a third person, and Rule 1.4 (Model Rule 1.4) requires keeping the client informed.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / NC Rule 1.2(a)(3) and cmt. [2] (professional judgment to waive a client right; disagreement over means)
• Model Rule 1.7 / NC Rule 1.7(a)(2) (material limitation by the lawyer's responsibilities to a third person)
• Model Rule 1.4 / NC Rule 1.4 (keeping the client informed)

See also

• ABA Formal Op. 481: Duty to Inform a Client of a Material Error
• ABA Formal Op. 08-450: Confidentiality When Representing Multiple Clients in the Same Matter

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2019-formal-ethics-opinion-7/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Lawyer represents Client in a wrongful discharge action and seeks production of discovery related to other employees (including employee personnel files). Due to the sensitivity of the information, opposing counsel agrees to produce the requested material only if Lawyer agrees to a “Stipulated Protective Order” containing an “Attorney Eyes Only” provision, which provides that opposing counsel may designate certain sensitive or highly confidential information as “Attorney Eyes Only,” and discovery materials designated as “Attorney Eyes Only” may not be disclosed to Client.

Lawyer reasonably believes that the requested material is necessary for Lawyer to effectively advise and represent Client. Lawyer is concerned that refusal to accept the “Attorney Eyes Only” restriction will cause opposing counsel to object to the discovery request and/or move for a protective order, resulting in delayed production, entry of a protective order for the requested material, or an order denying Lawyer’s request for the material.

May Lawyer agree to the Stipulated Protective Order containing the “Attorney Eyes Only” provision?

Opinion:

Yes. Rule 1.2(a)(3) allows a lawyer to “exercise his or her professional judgment to waive or fail to assert a right or position of the client.” Accordingly, a lawyer may agree to receive information under certain restrictions such as an “attorney eyes only” condition if the lawyer determines that doing so is in the client’s best interest and is in accordance with applicable law. In evaluating an “attorney eyes only” disclosure restriction, the lawyer should consider whether such a restriction is appropriate in the client’s specific matter. If the lawyer concludes that such a restriction is reasonably necessary to obtain relevant materials to effectively represent his or her client, the lawyer can receive the information pursuant to the restrictive conditions, but the lawyer should consider negotiating for the least restrictive disclosure requirement. Nevertheless, the lawyer may rely on his or her professional judgment to receive the information pursuant to an “attorney eyes only” or other limiting agreement. Rule 1.2(a)(3).

A lawyer, however, should proceed with caution when evaluating an “attorney eyes only” agreement. The use of an “attorney eyes only” disclosure restriction may create a conflict of interest for the lawyer under Rule 1.7(a)(2) in that the lawyer’s representation of the client may be materially limited by the lawyer’s responsibilities to opposing counsel via the disclosure restriction. This is particularly true in a criminal case, where a lawyer’s duties under such an agreement could conflict with the client’s statutory or constitutional rights to receive certain information. In addition, the lawyer must promptly inform his or her client of the discovery agreement. See Rule 1.4. If the lawyer and client cannot agree about the means to be used to accomplish the client's objectives, and the lawyer cannot reach a mutually acceptable resolution with the client, the lawyer may need to withdraw from the representation. Rule 1.2, cmt. [2].