If a client secretly copies or reads the opposing party's confidential documents during litigation, must the lawyer disclose it?

Plain-English summary

During a document inspection, the inquirer's clients gained access, without permission, to the private, confidential documents of their litigation adversary, copying or reading materials from opposing counsel's briefcases during a recess. Two of the clients' principals disagreed about exactly how the access occurred, but the Committee treated it as unauthorized in any event. The questions posed were whether the firm had a duty to disclose the clients' conduct to the tribunal and whether it had to withdraw.

The Committee found that no Rule of Professional Conduct directly governed the situation, and that neither RPC 3.4 (fairness to opposing party and counsel) nor RPC 4.1 (truthfulness in statements to others) clearly reached it, because the acts were taken by the client rather than the lawyer. It reasoned, however, that a lawyer may not do indirectly what is prohibited directly (RPC 8.4(a)), so the lawyer could not participate in reviewing evidence the client had obtained improperly. Allowing the client's improper actions to benefit the client in the litigation would constitute conduct prejudicial to the administration of justice under RPC 8.4(d).

The Committee concluded that only disclosure to the adversary would avoid that prejudicial effect, and that the situation therefore fell within RPC 1.6(c)(3), which permits disclosure of confidential information "to comply with other law." It emphasized that merely withdrawing from the representation, without disclosure, would not reverse the prejudicial conduct. The Committee did not take a position on whether the firm should withdraw, leaving that to the inquirer to decide based on whether "good cause" for withdrawal existed under RPC 1.16(b)(6).

Currency note

This opinion was issued in 1995, before New Jersey's adoption of the 2004 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 Treat this page as historical context, not current guidance.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: Did the lawyer have to disclose that the client secretly copied the adversary's documents?

A: Yes. The opinion concluded that disclosure to the adversary was required, because allowing the client's improper conduct to benefit the client in the litigation would be conduct prejudicial to the administration of justice under RPC 8.4(d).

Q: Could the lawyer simply withdraw instead of disclosing?

A: No. The opinion stated that mere withdrawal, without disclosure, would not reverse the prejudicial conduct.

Q: How did confidentiality under RPC 1.6 allow the disclosure?

A: The Committee read the situation as falling within RPC 1.6(c)(3), which permits disclosure of confidential information "to comply with other law," because only disclosure to the adversary would avoid the prejudice proscribed by RPC 8.4(d).

Q: Did the opinion require the firm to withdraw?

A: No. The Committee declined to decide that, leaving the inquirer to determine whether "good cause" for withdrawal existed under RPC 1.16(b)(6).

Background and rules framework

The opinion considered several New Jersey rules: RPC 1.6 (confidentiality of information, including the 1.6(c)(3) "comply with other law" exception then in force), RPC 3.4 (fairness to opposing party and counsel), RPC 4.1 (truthfulness in statements to others), RPC 4.4 (respect for the rights of third persons), RPC 8.4(a) and 8.4(d) (misconduct), and RPC 1.16(b)(6) (permissive withdrawal for good cause). The analysis turned on the fact that the wrongful acts were the client's rather than the lawyer's, and on the principle that a lawyer may not accomplish indirectly what the rules forbid directly.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NJ RPC 1.6(c)(3) (confidentiality; disclosure to comply with other law)
• MR 3.4 / NJ RPC 3.4 (fairness to opposing party and counsel)
• MR 4.1 / NJ RPC 4.1 (truthfulness in statements to others)
• MR 4.4 / NJ RPC 4.4 (respect for rights of third persons)
• MR 8.4 / NJ RPC 8.4(a), 8.4(d) (misconduct; conduct prejudicial to the administration of justice)
• MR 1.16 / NJ RPC 1.16(b)(6) (permissive withdrawal for good cause)

See also

• ABA Formal Op. 05-437: Inadvertent Disclosure of Confidential Materials
• ABA Formal Op. 06-440: Unsolicited Receipt of Privileged Materials

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2005/acp680-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

139 N.J.L.J. 202, January 16, 1995

4 N.J.L. 124, January 16, 1995

OPINION 680

Confidential Communications - Disclosure of Client's Surreptitious Copying of Confidential Documents in Possession of Attorneys for the Adverse Party

The inquirer advises that an associate in his firm attended a document inspection at her clients' offices. The clients consist of (1) a partnership comprised of principal "A," principal "B" and principal "C," and (2) principal "A" individually. The document inspection was conducted in order to provide opposing counsel and a representative of the adverse party with the clients' files relevant to the litigation.

The file inspection was in progress when the parties took a luncheon recess. At that time, all counsel, including the associate in question, left the premises. Opposing counsel and the two individuals in attendance with her left their briefcases in the clients' offices.

The inspection resumed following lunch until a brief recess was taken to afford the associate an opportunity to question the clients about the location of some files. It was during this recess that principal B advised the associate that the principals "were on a mission while you were gone ... [and] ... got great stuff on [the adverse party]." The associate asked for clarification and advised B that if the clients possessed any other documentation to support their case that they show it to her as it would have to be produced with the other files. B replied "no, the stuff is theirs, we got it from their briefcases." When the associate asked if the clients had taken the documentation from the briefcases, B replied "well you know [the briefcases] fell over" and "we copied it." The associate told B that this conduct was improper and stated that she did not want to see the copies of the documents taken from the briefcases at that time. Rather, the issue would be revisited at the conclusion of the day's proceedings.

Once the document inspection concluded for the day, the associate immediately went to principal A's office to discuss both the progress of the proceedings and the events that had taken place during the luncheon recess. A asked if the associate had requested from opposing counsel the adverse party's 1989-90 Procedures Manual and monthly bulletins which, according to the inquirer, were not privileged and were subject to discovery. When the associate advised him that she was not sure if the Notice to Produce had specifically demanded these documents, A told her that he believed the information contained in those documents might prove helpful to his case. The associate then remarked that the clients had apparently obtained copies of these documents when they photocopied the contents of opposing counsel's briefcase. A did not comment.

When A did not respond, the associate told him what B had related about the principals' activities during the luncheon recess. Again, A did not comment. However, while escorting the associate to her chair, A asked her for her legal opinion about his acquisition of potentially helpful information from opposing counsel. The associate told him that she did not know how the situation should be handled and would have to consult the senior partner.

Four days later, the senior partner met with the associate and principals A and B. At that meting the partner advised the principals that, given the absence of any authorities on point, he was considering the following options: (1) the firm's withdrawal from the case without disclosure of the confidential information obtained from B regarding the illicit photocopying; (2) the firm's withdrawal from the case with disclosure to opposing counsel and the court that opposing counsel's documents had been copied; (3) the firm's disclosure of the confidential information, continuing its representation of the clients; (4) the firm's continued representation of the clients without disclosure of the confidential information; or (5) seeking an advisory opinion from this Committee.

Upon being presented with these options, A became visibly upset and expressed his concern that his case might be seriously prejudiced were disclosure made to opposing counsel and the court. He also stated his belief that the activities in question were being blown out of proportion. He explained that it was he, and not B, who had gone into the office where the inspection was taking place. Observing that certain papers which had been on top of opposing counsel's briefcase had fallen to the floor, he proceeded to pick them up and arrange them in a pile. He also noticed a statement in one of the papers that "maybe we can weasel out of this." Concerned that opposing counsel was attempting to avoid liability, he decided to read the other documents. He did not, however, copy any documents from opposing counsel's briefcase as there was nothing of value in it.

Principals A and B never identified or described the nature or content of the documents they read. They continue to deny that any papers were copied or retained. They have also taken the position that any communications between them and counsel concerning the incident were confidential and must remain protected from disclosure by the attorney-client privilege.

The questions posed are whether the associate and senior partner have a duty to disclose their clients' conduct to the tribunal and/or withdraw from representation.

The nub of the problem posed by the inquiry lies with the fact that the clients gained access, without permission, to private, confidential documents of adversaries in litigation. Two of the principals of the client are not in accord as to the precise circumstances by which this access was gained, but in any event it was unauthorized.

No Rule of Professional Conduct directly deals with this specific situation, nor does any prior opinion of this Committee. Neither RPC 3.4 (Fairness to Opposing Party and Counsel) nor RPC 4.1 (Truthfulness in Statements to Others) clearly and directly reaches the situation posed by the inquirer. Further, while under RPC 4.1(a)(2) in some circumstances a client's seizure of evidence in the hands of an adversary certainly could constitute "a criminal or fraudulent act," we do not have enough evidence to draw such a conclusion here. Similarly, on the facts presented, the lawyer did not "use methods of obtaining evidence that violate the legal rights of such a [third] person," under RPC 4.4, as the actions were taken by a client.

Nonetheless, the client's reading of the adversary's documents was distinctly inappropriate and improper, constituting a clear invasion of privacy at the very least. If the lawyer had committed the acts ascribed to the clients, and items of evidence were involved, it would constitute a violation of RPC 4.4. It is well established that an attorney may not do indirectly that which is prohibited directly (see RPC 8.4(a)), and consequently the lawyer cannot be involved in the subsequent review of evidence obtained improperly by the client. Furthermore, the conduct of inquirer's client may have been of benefit to that client in the litigation. For a lawyer to allow a client's improper actions taken in the context of litigation to benefit that client in such litigation would constitute "conduct that is prejudicial to the administration of justice" under RPC 8.4(d). Only disclosure to the adversary will avoid the prejudicial effect proscribed by this rule, and thus this situation falls within those in which disclosure of confidential information is permitted by RPC 1.6(c)(3) in order "to comply with other law." Mere withdrawal from representation, without disclosure, will not reverse the prejudicial conduct.

The Committee does not take a position as to whether the inquirer's firm should withdraw from the representation. That is a conclusion to be drawn by the inquirer after considering whether, in light of all of the circumstances, "good cause" for withdrawal exists under RPC 1.16(b)(6).