NYSBA 1998-05-07

What should a lawyer do after an adversary law firm's former employee calls unsolicited to report that the firm altered documents?

Short answer: The opinion concluded the lawyer may not question the former employee further to extract the adversary's confidences, and where the tip suggests fraud the opposing firm may be assisting, the lawyer should bring the matter to the tribunal or another authority for direction on how the information may be used.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 700: Confidentiality and an unsolicited tip about altered documents

Short answer: The opinion concluded that a lawyer who receives an unsolicited call from an adversary firm's former employee reporting that documents were altered may not question that person to extract the adversary's confidences, and where the tip suggests fraud the opposing firm may be assisting, the lawyer should seek the tribunal's or another authority's guidance on using the information.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A lawyer for a government agency prosecuting an administrative proceeding received an unsolicited telephone call from a person who said he was a former non-lawyer employee of the firm representing the respondent. The caller stated that key records the respondent had submitted to the agency had been materially altered before submission. Sensitive to the issues, the lawyer asked no questions. The committee addressed three questions: whether the lawyer could seek more information from the former employee, whether the lawyer had to tell the respondent's firm about the call, and whether the lawyer had to tell the hearing officer and, if so, whether that could be done ex parte.

On the first question, the committee concluded the lawyer may not exploit the former employee's willingness to breach confidentiality. The information might be privileged or, if not, a "secret" under DR 4-101(A), which protects client information regardless of its source or that others share it. Even though the lawyer neither solicited the call nor caused the breach, further ex parte questioning to draw out the adversary's confidences would violate the letter and spirit of DR 1-102(A)(4) and (A)(5). The committee analogized to ABA Formal Opinions 368 (1992) and 382 (1994) on inadvertently or improperly disclosed materials, which direct the receiving lawyer to stop reviewing, notify the adversary, and abide by instructions or seek a court ruling. It declined to opine on whether the crime-fraud exception stripped the information of confidential status, calling that a question of law beyond its jurisdiction.

On the duty to the tribunal, the committee distinguished the facts from the inadvertent-disclosure cases: here there were no documents to return and the tip suggested possible fraud the opposing firm might be assisting. Under DR 7-102(B)(2), a lawyer who receives information clearly establishing that a person other than the client has perpetrated a fraud on a tribunal must promptly reveal it. The committee concluded it would be appropriate for the lawyer, on notice to opposing counsel, to notify the hearing officer of the allegation, which would satisfy any duty under DR 7-102(B)(2) and let the tribunal resolve the legal questions about using the information. Because DR 7-110(B) generally forbids ex parte communications on the merits with a presiding judge or officer, the committee said this notice should not be ex parte; but the lawyer could bring the allegation to another court or authority (such as a law enforcement or disciplinary body) ex parte if the lawyer reasonably concluded notice to opposing counsel was not appropriate in the first instance.

Currency note

This opinion was issued in 1998, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 keep questioning an adversary firm's former employee who volunteers damaging information?

A: The opinion concluded no, to the extent the questioning seeks the adversary's confidences or secrets. The lawyer may not exploit the former employee's willingness to breach confidentiality, even though the lawyer neither solicited the call nor caused the breach.

Q: Does the cited rule about contacting former employees change that?

A: The opinion concluded no. Although ex parte contact with an adversary's former employees is generally allowed, those authorities uniformly bar seeking privileged or work-product information, so the lawyer still may not draw out the former employer's confidences.

Q: Must the lawyer report a tip that the adversary submitted altered documents?

A: The opinion concluded that under DR 7-102(B)(2), if the information clearly establishes that someone other than the client perpetrated a fraud on the tribunal, the lawyer must promptly reveal it, and it would be appropriate to notify the hearing officer on notice to opposing counsel.

Q: Can the lawyer notify the hearing officer ex parte?

A: The opinion concluded the notice to the presiding officer should not be ex parte under DR 7-110(B), though the lawyer may approach a different court or authority ex parte if notifying opposing counsel first would not be appropriate.

Background and rules framework

The opinion interpreted DR 4-101(A) and (D) (confidences and secrets and the duty to prevent disclosure by others), DR 1-102(A)(4) and (5) (dishonesty and conduct prejudicial to the administration of justice), DR 7-102(B)(2) (revealing a non-client's fraud on a tribunal), DR 7-104(A)(1) (contact with represented persons), DR 7-110(B) (ex parte communication with a tribunal), and DR 1-103(A) (reporting misconduct) of New York's former Code. The Model Rule analogues include Rule 4.4 (respect for the rights of third persons, including inadvertently sent documents), Rule 3.3 (candor toward the tribunal), and Rule 4.2 (communication with represented persons). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

MR 4.4 (respect for rights of third persons; inadvertently disclosed materials)
MR 3.3 (candor toward the tribunal)
MR 4.2 (communication with represented persons)
NY DR 4-101(A), (D); DR 1-102(A)(4), (5); DR 7-102(B)(2); DR 7-104(A)(1); DR 7-110(B); DR 1-103(A)

Cases:

MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F. Supp. 712 (D. Conn. 1991), disqualification after contact with adversary's former team member
Niesig v. Team I, 76 N.Y.2d 363 (1990), ex parte contact with corporate employees
United States v. Zolin, 491 U.S. 554 (1989), crime-fraud exception

Other opinions cited:

ABA Formal Op. 368 (1992): handling inadvertently disclosed confidential materials
ABA Formal Op. 382 (1994): receiving an adversary's confidential materials without authority
N.Y. City 1989-1: lawyer may not use intercepted adversary communications

Source

Landing page: https://nysba.org/opinion-700/