What must a lawyer do if a client intercepts and copies privileged communications between the opposing party and that party's lawyer?

Plain-English summary

In a pending matrimonial action between spouses who lived together, each represented by separate counsel, one spouse's lawyer asked about his ethical obligations when his client intercepted communications between the other spouse and that spouse's counsel. The committee addressed three questions, assuming the intercepted communications were likely protected by the attorney-client privilege or work-product doctrine, and treating the underlying questions of the conduct's legality and the documents' admissibility as matters of law outside its jurisdiction.

On whether the lawyer may advise the client to intercept and copy the adversary's privileged mail, the committee concluded it would be improper. Such advice demonstrates a lack of candor and fairness to opposing counsel and the other party, involves a deceitful invasion of privacy and intrusion into privileged communications, and implicates the rules barring deceitful conduct (DR 1-102(A)(4)) and counseling illegal conduct (DR 7-102(A)(7)). The committee analogized to its line of opinions condemning a lawyer's participation in surreptitious recording of opposing lawyers and clients.

On whether retaliation changes the answer when the non-client spouse started the practice, the committee concluded it does not: the Code's prohibitions are not conditioned on the blamelessness of the opposing party, and the client's remedy is to seek relief from the court (and, if the other lawyer participated, to report that conduct to the disciplinary committee).

On the lawyer's use of documents the client intercepted without the lawyer's suggestion or knowledge, the committee concluded the lawyer may not offer them in evidence, quote them, or otherwise make affirmative use of them unless and until he discloses to the adversary that he possesses the documents and returns them or copies. Even with no intent to use them, the lawyer must disclose possession and return copies, because retaining an undisclosed advantage from privileged materials obtained outside normal discovery would be prejudicial to the administration of justice. Because the lawyer learned of the interception in the course of the professional relationship, the fact is a "secret" under DR 4-101(A) that he may not disclose without the client's consent; if the client withholds consent, the lawyer must withdraw under DR 2-110(B).

Currency note

This opinion was issued in 1989, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Confidentiality is now governed by Rule 1.6, dishonesty and conduct prejudicial to the administration of justice by Rule 8.4, and withdrawal by Rule 1.16; the receipt of inadvertently or improperly disclosed documents is now addressed by Rule 4.4. 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: Can a lawyer advise a client to open and copy mail between the opposing party and that party's lawyer?

A: The committee concluded no; such advice shows a lack of candor and fairness, involves a deceitful intrusion into privileged communications, and violates the rules against deceitful conduct and counseling illegal conduct.

Q: Does it matter that the other side started intercepting first?

A: The committee concluded no; the Code's prohibitions are not conditioned on the opposing party's blamelessness, so retaliation is not justified, and the client should instead seek relief from the court.

Q: If the client intercepts documents on its own, can the lawyer use them?

A: The committee concluded the lawyer may not make affirmative use of them, and indeed must disclose his possession and return copies to opposing counsel, even if he does not intend to use them.

Q: Can the lawyer disclose the interception without the client's permission?

A: The committee concluded no; the interception is a "secret" under DR 4-101(A) that the lawyer may not reveal without the client's consent, and if the client withholds consent the lawyer must withdraw under DR 2-110(B).

Background and rules framework

The opinion applied New York Code DR 4-101(A) and (B) (confidences and secrets), DR 1-102(A)(4) and (5) (dishonest conduct and conduct prejudicial to the administration of justice), DR 7-102(A)(7) and (B)(1) (assisting illegal conduct and rectifying a client's fraud), DR 7-106(C)(1) (statements unsupported by admissible evidence), and DR 2-110(B) (mandatory withdrawal), informed by EC 7-10, EC 7-25, and EC 9-2. These correspond to ABA Model Rules 1.6 (confidentiality) and 8.4 (misconduct), with Rule 1.16 governing withdrawal.

Citations and references

Rules of Professional Conduct:

• New York Code DR 4-101(A)-(B), DR 1-102(A)(4)-(5), DR 7-102(A)(7), DR 7-102(B)(1), DR 7-106(C)(1), DR 2-110(B); EC 7-10, EC 9-2 (applied in the opinion)
• MR 1.6 (confidentiality); MR 8.4 (misconduct)

Cases:

• Sackler v. Sackler, 16 A.D.2d 423 (2d Dept. 1962), aff'd, 15 N.Y.2d 40 (1964), admissibility of improperly obtained evidence

Other opinions cited:

• N.Y. City 80-95: secret recordings of lawyers or clients are unethical
• N.Y. City 683 (1945); N.Y. City 836 (1958): condemning surreptitious recording of adversaries
• N.Y. City 832: a lawyer may not embrace a client's wrongdoing to promote the cause
• ABA Op. 337 (1974); ABA Inf. Op. 1320 (1975): surreptitious recording

See also

• NYC Bar Formal Op. 1994-11: Confidentiality on Cellular and Cordless Phones
• NYC Bar Formal Op. 1988-8: Contacting the Head of a Represented Government Agency

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1989-1/