Must a New York lawyer disclose that the client has been secretly reading the opposing party's privileged emails?

Plain-English summary

A lawyer represents a client in a matrimonial litigation. The client has disclosed that the client can access and has been reading the spouse's emails, including emails with the spouse's counsel. The client has not given the lawyer the emails or told the lawyer their contents, but may be using that knowledge in litigation decisions. The committee concludes that the lawyer's knowledge of the conduct is confidential information under Rule 1.6(a). The lawyer should admonish the client to stop, but absent an exception the lawyer may not disclose the conduct to the court or opposing counsel.

The committee works through the possible sources of a disclosure duty. Rule 4.4(b), which requires a lawyer who "receives" an "inadvertently sent" document to notify the sender, does not apply because the lawyer has not received the emails; and even if the lawyer had received them, the ABA's view is that documents wrongly obtained by a client were not "inadvertently sent" (citing ABA Formal Op. 11-460 and 06-440 and the Comment to Rule 4.4(b)). On Rule 8.4(d) (conduct prejudicial to the administration of justice), the committee distinguishes N.Y. City 1989-1, which found a notification duty where a client intercepted the spouse's communications and gave them to the lawyer; here the lawyer never received the emails and cannot use them, and the committee doubts whether 1989-1 remains correct after New York adopted Rule 4.4(b) in 2009.

On Rule 3.3(b) and (c), which require remedial measures (including, if necessary, disclosure to the tribunal) when the lawyer knows a person engaged in criminal or fraudulent conduct related to the proceeding, the committee notes it does not decide questions of law, so it does not opine whether reading the spouse's emails is a crime or fraud. If it is, the required "reasonable remedial measures" need not include disclosure; persuading the client to stop may suffice if that averts harm. Finally, Rule 1.6(b)(6) permits, but does not require, disclosure to the extent the lawyer reasonably believes necessary to comply with other law or a court order, so if judicial decisions impose a notification duty the lawyer may disclose, even when the legal obligation is not free from doubt.

In practice

The opinion holds that, under the New York rules as they stood in 2012, the lawyer's default duty is confidentiality: the lawyer must not disclose the client's conduct, but should direct the client to stop. The committee identifies the controlling factors as whether a recognized exception applies, principally whether the conduct is criminal or fraudulent under Rule 3.3(b) (a question of law the committee did not decide) and whether governing judicial decisions require notification, in which case Rule 1.6(b)(6) permits disclosure. Because the lawyer here had not received or used the emails, the committee found no mandatory disclosure duty on the facts presented.

Common questions

Q: If my client admits reading the other side's privileged emails, do I have to tell the court?

A: Not as a default. Per paragraphs 2 and 10, the lawyer's knowledge is confidential under Rule 1.6 and disclosure is required only if the client is committing a crime or fraud that no other measure will prevent, or governing law requires it.

Q: Does Rule 4.4(b)'s inadvertent-document notice duty apply?

A: No. Per paragraph 3, the lawyer never "received" the emails, and the ABA view (which the committee follows) is that documents wrongly obtained by a client were not "inadvertently sent," so Rule 4.4(b) does not apply.

Q: What should the lawyer do about the client's conduct?

A: Admonish the client to stop. Per paragraph 2, that is the lawyer's affirmative step; further disclosure is permitted only if an exception applies.

Background and rules framework

The opinion interprets New York Rule 1.6 (Model Rule 1.6, confidentiality, including the Rule 1.6(b)(6) permission to disclose to comply with other law), Rule 3.3(b) and (c) (Model Rule 3.3, candor and remedial measures for criminal or fraudulent conduct related to a proceeding), Rule 4.4(b) (Model Rule 4.4, inadvertently sent documents), and Rule 8.4(d) (Model Rule 8.4, conduct prejudicial to the administration of justice). The committee stresses it interprets only the Rules of Professional Conduct, not whether the client's underlying conduct is criminal or otherwise unlawful.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY Rule 1.6(a), 1.6(b)(6) (confidentiality; permissive disclosure to comply with other law)
• MR 3.3 / NY Rule 3.3(b), (c) (remedial measures for criminal or fraudulent conduct)
• MR 4.4 / NY Rule 4.4(b) (inadvertently sent documents)
• MR 8.4 / NY Rule 8.4(d) (conduct prejudicial to the administration of justice)

Cases:

• Parnes v. Parnes, 80 A.D.3d 948, 915 N.Y.S.2d 345 (3d Dep't 2011), criticizing counsel's failure to notify after a spouse downloaded emails.
• Lipin v. Bender, 193 A.D.2d 424, 597 N.Y.S.2d 340 (1993), aff'd, 664 N.E.2d 1300 (N.Y. 1994), on handling opposing counsel's improperly taken documents.

Other opinions cited:

• ABA Formal Op. 11-460 (2011) and 06-440 (2006): documents wrongly obtained by a client are not "inadvertently sent."
• N.Y. City 1989-1: notification duty where a client gave intercepted communications to the lawyer (distinguished and questioned).
• Arizona Op. 01-04 (2001): no notice without client consent where a client procures a former employer's privileged documents.

See also

• NY State Bar Op. 1011: Duty to remedy fraudulent visa submissions
• NY State Bar Op. 1123: False statement of net worth and remedial measures
• NY State Bar Op. 1057: Disclosing client information on a motion to withdraw

Source

• Landing page: https://nysba.org/ethics-opinion-945/