Must a lawyer turn over to federal investigators information his investigator obtained by illegally tapping an adverse party's phone?

Plain-English summary

A lawyer in a divorce suit hired a private investigator to gather information for his client. Without the lawyer's knowledge, the investigator tapped the adverse party's telephone and recorded the conversations, then delivered the records to the lawyer. Federal authorities investigating alleged wiretapping violations asked the lawyer to divulge what he had received.

The Committee declined to answer whether divulging the information would violate any statute, holding that question outside the scope of its functions (8-0). On the ethics question, it concluded that it would violate Canon 34 for the lawyer to reveal the described information to federal investigators (5-2).

Currency note

This opinion was issued in 1954, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The protection of client confidences is now governed by Texas Disciplinary Rule 1.05 and ABA Model Rule 1.6. 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 Treat this page as historical context, not current guidance.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: Could the lawyer hand the wiretap information to federal investigators who requested it?

A: No. The Committee held that revealing the described information to federal investigators would violate Canon 34 (5-2).

Q: Did it matter that the lawyer did not know the investigator would tap the phone?

A: The headnote frames the conclusion as applying even though the information was obtained that way without the lawyer's knowledge.

Q: Did the Committee address whether disclosure would break a statute?

A: No. It declined to answer that question as outside the scope of its functions (8-0).

Background and rules framework

The opinion interprets former Texas Canon 34, which addressed the confidences of a client. The modern analog is ABA Model Rule 1.6 (confidentiality of information) and Texas Disciplinary Rule 1.05.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information), as the modern analog
• Texas Canon 34 (confidences of a client)

See also

• TX Ethics Op. 117: Obtaining a Statement From an Opposing Party
• TX Ethics Op. 118: Retaining Work Sheets on File Transfer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-105/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_105.pdf

Original opinion text

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

QUESTION PRESENTED

The attorney for one of the parties to a divorce suit employed a private investigator to obtain information for his client. Without the knowledge of the attorney, the investigator tapped the telephone wire of the adverse party and recorded conversations overheard by means of the tapped wire. Records of the conversations were delivered to the attorney who had employed the investigator. Federal authorities, investigating alleged violations of federal laws in connection with wire tapping, have asked the attorney to divulge the information which he received from the investigator. The following questions were submitted:
Would the attorney violate any statute by divulging such information?
Would the attorney violate the Canons of Ethics if he divulged such information to federal investigators?

18 Baylor L. Rev. 237 (1966)

CONFIDENCES OF CLIENT - FEDERAL INVESTIGATION
Where federal authorities are investigating alleged violations of federal wire tapping laws, an attorney is prohibited from disclosing information in his possession which was obtained by tapping the telephone wires of an adverse party, even though the information was obtained in that manner without the attorney's knowledge.

Canon 34.

It is our opinion that the committee should decline to answer question No. 1 because it is outside the scope of the committee's functions. (8-0)

Concerning question No. 2, the committee is of the opinion that it would violate Canon 34 for the attorney to reveal the described information to federal investigators. (5-2)

Tex. Comm. On Professional Ethics, Op. 105 (1954)