When a client hands a lawyer documents taken from an employer without authorization, must the lawyer return them, notify the other side, and can the lawyer use the information?

Plain-English summary

The request presented ten scenarios (nine in employment disputes where the lawyer represents an employee, plus one government-attorney scenario) in which a lawyer receives documents concerning the opposing party, usually from the client. For each, the question is whether the lawyer must return the documents, must notify the employer, and may read and use the information. The committee frames every scenario around the general duty of confidentiality in Rule 1.6 and its interaction with Rule 3.4(a) (not concealing or obstructing access to evidence) and Rule 4.4 (not using methods that violate the legal rights of a third person).

The committee repeatedly declines to give categorical answers because the outcomes depend on facts it does not have. Whether the lawyer may use the information depends on the documents' nature, the source, the method the client used to gather them, and whether the lawyer directed the client (Rule 8.4(a) bars a lawyer from violating the rules through the acts of another). Rule 1.6(b)(1) permits disclosure or return where "law or a court order" requires it, and the committee reads "other law" to include other Rules such as 3.4 and 4.4. Where a whistleblower statute (for example the False Claims Act's under-seal requirement) imposes confidentiality, Rules 3.4(a) and 4.4 do not force the lawyer to breach it.

When the documents contain the adversary's attorney-client communications, the committee applies LEO 1702: notify opposing counsel, return the materials, and follow that counsel's instructions, with disputes settled by a court. It recognizes exceptions: a whistleblower statute's confidentiality period, and the LEO 1688 situation where the client (not an unauthorized source) provides copies, so the employer loses neither the information nor the documents. For the government-attorney scenario, the committee opines that Rules 3.4(a) and 4.4 impose no per se ban where a U.S. Attorney, acting lawfully, collects documents for law enforcement rather than to obstruct access to evidence.

Currency note

This opinion was issued in 2004. Virginia did not adopt the ABA's later revision of Model Rule 4.4 requiring only notice for inadvertently transmitted materials, so the committee treated LEO 1702 as the governing authority; rules and case law may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that a Virginia lawyer who receives documents a client took from an employer must work through Rules 1.6, 3.4(a), and 4.4 case by case, because the duty to return, disclose, or refrain from using the materials depends on their nature, source, and any other applicable law. Where the materials contain the adversary's privileged communications, the LEO 1702 notify-and-return procedure governs, subject to whistleblower-statute and client-source (LEO 1688) exceptions. The lawyer also may not direct the client to gather evidence by a method the lawyer could not use, because Rule 8.4(a) reaches misconduct accomplished through another.

Common questions

Q: If a client gives the lawyer non-privileged documents taken from the employer, must the lawyer return them?

A: It depends. The committee says Rule 1.6(b)(1) requires return or disclosure only where "law or a court order" (including Rules 3.4(a) and 4.4) so requires; the limited facts often did not allow a definitive answer.

Q: Can the lawyer use information from documents the client took without permission?

A: Only if doing so does not violate Rule 3.4(a) or Rule 4.4, and the lawyer did not direct the client to obtain evidence by a method the lawyer could not use (Rule 8.4(a)). The method of acquisition is central.

Q: What if the documents contain the employer's attorney-client communications?

A: The committee applies LEO 1702: notify opposing counsel, return the materials, and follow instructions, with disputes resolved by a court, subject to exceptions for whistleblower-statute confidentiality and for client-provided copies under LEO 1688.

Q: Does a whistleblower statute change the duty to notify the other side?

A: Yes. Where a statute such as the False Claims Act requires the matter be kept confidential (for example filed under seal), the committee says Rules 3.4(a) and 4.4 do not require the lawyer to breach that legal duty.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6; confidentiality, including the (b)(1) exception for disclosures required by law or court order), Rule 3.4(a) (Model Rule 3.4; obstructing access to or concealing evidence), Rule 4.4 (Model Rule 4.4; methods that violate the legal rights of third persons), and Rule 8.4(a) (Model Rule 8.4; violating the rules through the acts of another).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Virginia Rule 1.6, including 1.6(b)(1) (confidentiality; disclosure required by law or court order)
• Model Rule 3.4 / Virginia Rule 3.4(a) (concealing or obstructing access to evidence)
• Model Rule 4.4 / Virginia Rule 4.4 (methods violating the legal rights of third persons)
• Model Rule 8.4 / Virginia Rule 8.4(a) (violating the rules through another)

Statutes:

• 31 U.S.C. Sections 3729-33 (False Claims Act); 42 U.S.C. Section 1301 et seq. (HIPAA); Virginia Code Section 32.1-127.1:03

Cases:

• In re Ryder, 263 F. Supp. 360 (E.D. Va. 1967), receipt of the fruits or instrumentalities of a crime from a client
• Florida Bar v. Burkich, 659 So. 2d 1082 (Fla. 1995); Mississippi Bar v. Land, 653 So. 2d 899 (Miss. 1993); In re Herkenhoff, 866 P.2d 350 (N.M. 1993); In re Walker, 828 F. Supp. 594 (C.D. Ill. 1992), discovery-violation cases

Other opinions cited:

• Virginia LEOs 1702, 1688, 1749, 1765, 1738, 709, 551 (receipt and use of documents and information)

See also

• VA LEO 1787: Confidentiality Agreements With Expert Witnesses
• ABA Formal Op. 05-437: Inadvertent Disclosure of Confidential Materials
• ABA Formal Op. 06-442: Review and Use of Metadata

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1786.pdf

Original opinion text

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

Committee Opinion
December 10, 2004
LEGAL ETHICS OPINION 1786

DISCLOSURE AND USE OF
CONFIDENTIAL DOCUMENTS
OBTAINED BY A CLIENT WITHOUT
AUTHORIZATION.

You have presented hypothetical scenarios, each involving one attorney receiving
documents regarding the opposing party. In each situation, you question whether the
attorney must return the documents and whether he can read and use the information
contained in the documents. Of the ten scenarios you present, one involves the conduct
of government attorneys. Discussion of that scenario will occur at the end of this
opinion. The other nine scenarios in your request involve legal disputes in the area of
employment law with the lawyer representing an employee (or former employee) in
receipt of documents. Based on the facts presented, the committee opines as follows.
The fundamental issue running through all the scenarios and questions in this request is
what are the proper parameters of the general duty of confidentiality established in Rule
1.6. Rule 1.6 states as follows:
(a) A lawyer shall not reveal information protected by the
attorney-client privilege under applicable law or other information
gained in the professional relationship that the client has requested be
held inviolate or the disclosure of which would be embarrassing or
would be likely to be detrimental to the client unless the client consents
after consultation, except for disclosures that are impliedly authorized
in order to carry out the representation, and except as stated in
paragraphs (b) and (c).
(b) To the extent a lawyer reasonably believes necessary, the
lawyer may reveal:
(1) such information to comply with law or a court order;
(2) such information to establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer and the client, to
establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer's
representation of the client;
(3) such information which clearly establishes that the client
has, in the course of the representation, perpetrated upon a third party a
fraud related to the subject matter of the representation;

Committee Opinion
December 10, 2004
(4) such information reasonably necessary to protect a client’s
interests in the event of the representing lawyer’s death, disability,
incapacity or incompetence;
(5) such information sufficient to participate in a law office
management assistance program approved by the Virginia State Bar or
other similar private program;
(6) information to an outside agency necessary for statistical,
bookkeeping, accounting, data processing, printing, or other similar
office management purposes, provided the lawyer exercises due care in
the selection of the agency, advises the agency that the information
must be kept confidential and reasonably believes that the information
will be kept confidential.
(c)

A lawyer shall promptly reveal:

(1) the intention of a client, as stated by the client, to commit a
crime and the information necessary to prevent the crime, but before
revealing such information, the attorney shall, where feasible, advise
the client of the possible legal consequences of the action, urge the
client not to commit the crime, and advise the client that the attorney
must reveal the client's criminal intention unless thereupon abandoned,
and, if the crime involves perjury by the client, that the attorney shall
seek to withdraw as counsel;
(2) information which clearly establishes that the client has, in
the course of the representation, perpetrated a fraud related to the
subject matter of the representation upon a tribunal. Before revealing
such information, however, the lawyer shall request that the client
advise the tribunal of the fraud. For the purposes of this paragraph and
paragraph (b)(3), information is clearly established when the client
acknowledges to the attorney that the client has perpetrated a fraud; or
(3) information concerning the misconduct of another attorney
to the appropriate professional authority under Rule 8.3. When the
information necessary to report the misconduct is protected under this
Rule, the attorney, after consultation, must obtain client consent.
Consultation should include full disclosure of all reasonably
foreseeable consequences of both disclosure and non-disclosure to the
client.
Paragraph (b)(1) of Rule 1.6 is especially critical for resolution of the issues raised in
this request. Where “law or a court order” requires an attorney to disclose confidential
information, paragraph (b)(1) of Rule 1.6 permits the attorney to make the requisite
disclosure. While the other law contemplated in Rule 1.6 (b)(1) could in many instances

Committee Opinion
December 10, 2004
be legal authority other than the Rules of Professional Conduct, paragraph (b)(1) of Rule
1.6’s reference to other law is not limited to law outside the Rules of Professional
Conduct, but could also involve application of other provisions within the Rules.
Particularly noteworthy in the present situation will be Rules 3.4(a) and 4.4. Rule 3.4(a)
provides as follows:
A lawyer shall not…obstruct another party’s access to evidence or
alter, destroy, or conceal a document or other material having potential
evidentiary value for the purpose of obstructing a party’s access to
evidence. A lawyer shall not counsel or assist another person to such
act.
Similarly, Rule 4.4 directs, in pertinent part, that in representing a client, an attorney
must not “use methods of obtaining evidence that violate the legal rights of a third
person.”
The deliberations required in each instance for this attorney must focus on discerning
when the duty of confidentiality applies and when the attorney is within one of the
exceptions outlined in the rule. The attorney must consider both confidences (i.e.,
information protected by the attorney/client privilege) and secrets (i.e., information the
client has asked to be kept inviolate or that may embarrass or be detrimental to the client)
in deciding whether the situation presents an exception to the duty of confidentiality.
The balance between the general duty of confidentiality protection and other competing
duties of disclosure will be the basis for resolution of many of the questions asked in this
request.
1. An employee comes to the lawyer for representation in a whistleblower
situation. The employee provides the attorney with documents from the employer
that the employee considers to be confidential. The employee had legitimate access
to the documents, but had not sought the employer’s permission to remove the
documents. The lawyer’s review of the documents establishes that they contain no
information protected by the attorney-client privilege or any other privilege
recognized in Virginia. The only sense in which the documents are confidential is
that the employer does not wish anyone outside the company to know of the
contents of the documents. Were litigation pending, the documents would be
subject to discovery. However, at this time, neither party has filed a lawsuit.
a. What are the attorney’s obligations regarding the documents: must he notify
the employer, must he return the documents, and may he use the information?
LEO 1702 addressed an attorney’s receipt of attorney/client documents from the
opposing counsel’s file from an unauthorized source. However, the present hypothetical
differs in two ways: the materials do not include attorney/client communications and the
attorney received them not from some unauthorized source, but from his client. The
principles established in LEO 1702 are, therefore, not dispositive in the present scenario.

Committee Opinion
December 10, 2004

While the materials in question do not contain attorney/client communications, the
client does describe them to his attorney as “confidential”. The facts of the hypothetical
do not provide further detail as to the nature of the materials. The attorney in the present
instance is in possession of someone else’s property, though the facts do not suggest that
the client actually stole the documents. In deciding whether he can keep confidential his
receipt of the documents, the attorney needs to consider the application of Rule 1.6 and
its exceptions. Rule 1.6(b)(1) would allow return of the documents where needed to
comply with “law or a court order.” Thus, the answer for this attorney would depend
very much on the type of documents he received. The hypothetical facts presented do not
provide sufficient detail for a dispositive application of paragraph (b)(1) of Rule 1.6.
There could be any number of document types that may bring in other law. For example,
if the documents were medical records, the attorney may need to look to the Health
Insurance and Portability Accountability Act (HIPAA) 1, as medical records and those
who receive them are carefully regulated. The application of Rule 1.6(b)(1) would rely
both on the nature of the documents and whether any pertinent law attaches. 2
Whether the general confidentiality duty the attorney owes his client must give way to
applicable “law or court order,” including Rules 3.4 and 4.4 will determine whether the
attorney must notify the opposing party of the receipt of the documents and whether he
must return them.
Whether he can use the information will depend on the nature of the documents, the
nature of the source of the information, the method used by the client to gather the
information, and finally, whether the attorney directed the client to do so. The limited
facts provided prevent the committee from opining on the issue other than to reiterate that
the attorney can only use such information if doing so would not violate Rule 3.4(a) and
Rule 4.4. The committee notes that Rule 8.4(a) precludes an attorney from violating the
Rules of Professional Conduct “through the acts of another.” Thus, the attorney should
not direct the client to obtain evidence via a method the attorney himself is ethically
prohibited from using. 3
b. Would the answer change if the client brings the documents to the lawyer after
the start of litigation?
The analysis provided in part “a” of this question still pertains. In addition, the attorney
must confirm that his receipt of the materials would not violate a rule of court or a court
order regarding discovery. The attorney may not keep quiet about the receipt of the
materials if “law or court order” would require him to disclose its receipt. 4

1

42 U.S.C. §1301 et seq. See also Virginia Code §32.1-127.1:03 for the related Virginia provision.
There are other exceptions to Rule 1.6, but they are not suggested by this scenario and its corresponding
question.
3
See, e.g., LEO 1738 and LE0 1765 (discussing evidence-gathering techniques such as tape-recording).
4
There are other exceptions to Rule 1.6, but they are not suggested by this scenario and its corresponding
question.
2

Committee Opinion
December 10, 2004
The committee notes one particular fact of importance in the hypothetical presented.
The hypothetical describes the particular legal matter as involving the employee/client
serving as a whistleblower. No further information identifies whether a particular
whistleblower statue applies and, if so, which one. However, while the committee cannot
definitively resolve the impact of a whistleblower statute given the limited facts provided,
the committee does note that whistleblower statutes usually provide some sort of
confidentiality period for the information in question. For example, the False Claims Act
places a duty on the part of the lawyer and the plaintiff that the original suit be filed under
seal. 5 During a specified period, the plaintiff and attorney must keep the information
confidential, including from the defendant. 6 If this attorney determines that compliance
with any such whistleblower statute precludes him from informing the opposing party
during a specified time period. Rules 3.4(a) and 4.4 would not require the attorney to
breach that legal duty.
2. The client in the above scenario does not provide the attorney any documents
but does tell the attorney about information the client learned from documents
prepared or read legitimately as part of his employment.
a. May the attorney use the information in preparation for litigation against the
employer, e.g., in preparing discovery requests?
The analysis developed in response to Question 1, above, is pertinent to the present
question. This question is particularly related to the conclusion in Question 1 regarding
the use of the information learned from reading the documents. Here, the client rather
than the lawyer reads the materials, and the lawyer never reviews or takes possessions of
the documents. The analysis remains the same; the attorney may use the information so
long as doing so does not violate Rules 3.4(a) or 4.4. The scenario lacks sufficient detail
for that determination.
b. Must he notify the opposing counsel of the receipt of the information?
Assuming the client does not wish the attorney to provide that information to the
employer, the attorney should keep the client’s conversation confidential pursuant to Rule
1.6, unless circumstances exist that bring the situation within one of the exceptions listed
in the rule.
3. The scenario remains the same as in Question 1, above, except now the client is
a former employee rather than a current employee.
The question raised is whether this change in employment status of the client alters the
answers to the questions addressed above. The analysis outlined in Questions 1 and 2
would remain. However, termination of the employment may go to the application of
Rule 1.6(b)(1), Rule 3.4(a), or Rule 4.4, depending on, as before, the nature of the
5
6

See 31 U.S.C. §§3729-33.
Id.

Committee Opinion
December 10, 2004
documents, how they were procured, and whether any other law applies. To reiterate, the
committee lacks sufficient information to answer this question beyond a general
recitation of applicable provisions in the Rules.
4. In a whistleblower situation, the employee client presents to the attorney
documents the client lawfully obtained from the employer that are subject to either
the attorney/client privilege or the work product doctrine. No lawsuit is pending.
a. May the attorney review and use the documents in preparing his client’s case,
such as for developing discovery requests and must he notify the other side and/or
return the documents?
This scenario is somewhat ambiguous. The committee interprets the facts to mean that
the client properly had the documents as part of his employment, the documents
contained communications between the employer and its attorney, and the employer did
not authorize the client to provide the documents to the client’s attorney. As discussed
earlier, prior LEO 1702 dealt with attorney/client materials purposefully provided by an
unauthorized source. Here, unlike in the earlier questions, the materials do include
attorney/client communications. The committee opines that the conclusions drawn in
LEO 1702 address the present attorney’s conduct 7. LEO 1702 presents a general
procedure for an attorney who receives an unauthorized transmission of materials
containing attorney/client communications from the opposing side: he should notify the
opposing counsel, return the materials, and follow that counsel’s instructions, with any
dispute to be settled by a court.
LEO 1702 does allow that there may be worthy exceptions to that procedure. One
example given is where someone took the documents within the protection of a
whistleblower statute. The committee reiterates that where an applicable whistleblower
statute requires confidentiality during a preliminary stage, the attorney may properly
refrain from notifying the opposing attorney during that period. 8
The committee sees an additional “exceptional” situation to the general LEO 1702
procedure in the earlier LEO 1688. That opinion concludes that an attorney should not
disclose to the client’s former employer that the attorney had received a document copied
without authority, but not stolen, which contained attorney/client communications
because the attorney received the document from the client (as opposed to the
unauthorized source in LEO 1702). The client had asked the attorney to keep receipt of
the document confidential; the attorney permissibly maintained that confidentiality under
Rule 1.6. Thus, the client as source of the document could in some instances qualify as
an appropriate exception to the LEO 1702 procedures. However, that exception is not
7

LEO 1702 relies in part on ABA Formal Opinions 92-368 and 94-382. Since issuing those opinions, the
ABA has revised Model Rule 4.4 to include express language requiring only notice to the other attorney
when the attorney/client materials are inadvertently transmitted. Virginia has not made a corresponding
change to its Rules of Professional Conduct; the analysis in LEO 1702 remains the pertinent authority on
this issue in Virginia.
8
See discussion of this issue under Question 1, above.

Committee Opinion
December 10, 2004
necessarily appropriate here. In LEO 1688, the documents in question were copies of
originals still in the employer’s possession so the employer was deprived of neither the
information nor the documents. Accordingly, if the documents in the present scenario
were copies, the fact that the source of the documents is the client distinguishes this
scenario from that of LEO 1702 such that this attorney may permissibly refrain from
notifying the employer about the documents. However, if the documents in the present
scenario were originals, the exception suggested by LEO 1688 for client-provided
documents to the usual LEO 1702 procedure would not be appropriate. The scenario as
presented lacks sufficient detail for a determination on this point.
b. Would the answers to parts “a” and “b” of this question change if the client
provided the documents after the start of litigation?
The possible significance of the start of litigation may include more from clearly
defined parties and formal discovery. In the analysis for part “a” of this question, the
committee treated the employer as the opposing party. A potential whistleblower action is
the subject matter of the representation; nothing in the conclusions regarding part “a” in
this fourth scenario requires the actual filing of a lawsuit to trigger the protection of an
adverse party’s confidentiality. As for the existence of formal discovery, in complying
with the LEO 1702 procedure, including the possible exceptions to that procedure
outlined above, the attorney should, of course, comply with applicable rules of court or
court orders regarding discovery. However, the exact balance of normal discovery
provisions with the confidentiality provisions of most whistleblower statutes is outside
the purview of this committee. 9
c. Do the answers to parts “a” and “b” change if the materials are not subject to
the attorney/client privilege but are instead subject to an order prohibiting their
discovery or otherwise limiting their use?
LEO 1702’s conclusions expressly rest on the importance of the ethical principle of the
confidentiality of attorney/client communications. If the documents do not contain
materials subject to the attorney/client privilege or the work product doctrine, LEO 1702
is not applicable. Therefore, the appropriate analysis is, as presented earlier regarding
Question 1, that the attorney’s use of and obligations regarding these materials are
governed by Rules 1.6, 3.4(a), and 4.4. The presence of a court order regarding disclosure
of the materials is the sort of pertinent factor the attorney must consider in applying those
rules to the present fact pattern. However, the presented hypothetical does not provide
sufficient facts for the committee to make that determination.
d. When this attorney receives the materials from his client, do the markings on
the document dictate whether the attorney must treat them as privileged, or in some
other way confidential?

9

See discussion of Rule 1.6(b)(1) earlier in this opinion.

Committee Opinion
December 10, 2004
The kinds of markings on a document as well as other features of its appearance
involve facts not before the committee in any of the provided scenarios. However, the
committee notes that an attorney receiving documents triggering the sort of concerns
raised in this request will have to determine the character both of the documents and their
transmission. Such determinations will combine both relevant facts and pertinent law, as
discussed throughout this opinion.
5. A client comes to the attorney with documents that expose wrongdoing on the
part of his employer. Specifically, the documents expose that the employer has been
defrauding the government and would form the basis of an action under the False
Claims Act. The company wants to keep those documents confidential to avoid
criminal or civil liability for its wrongdoing. The client did have authorized access
to the documents as part of his employment.
a. Can the attorney review the documents and use the information he learns from
them?
The committee assumes that these materials do not contain information subject to the
attorney/client privilege or the work product doctrine, as that was the subject matter of
Question 4. Therefore, the attorney may review the documents and make use of the
information so long as doing so would not violate Rule 4.4. In particular, that rule
prohibits acquiring evidence in a manner that “violates the legal rights of others.” The
scenario does not provide sufficient facts for the committee to make that determination,
but if the client and attorney’s handling of the documents is in compliance with the False
Claims Act, that would be a factor in the determination. 10
b. Must the attorney notify the other attorney that he has the materials and must
he return them?
As in Question 4 “c”, the notification and document return duties outlined in LEO 1702
are inapplicable here as the materials do not contain information subject to the
attorney/client privilege or the work product doctrine. Therefore, the attorney may
refrain from informing the employer about the receipt of these documents (and from
returning them), so long as that silence does not violate Rule 3.4(a), which prohibits a
lawyer from concealing evidence with the “purpose of obstructing a party’s access to
evidence.” As discussed with Question 1, part “b”, compliance with the False Claims
Act would be consistent with Rule 1.6 and not in violation of Rule 3.4(a). The committee
notes that other jurisdictions have typically only found violations of that rules’ provision
in situations involving actual discovery violations or fraud. 11

10

Also see the discussion of this issue in the analysis provided with the first three questions of this opinion.
See e.g., Florida Bar v. Burkich, 659 So. 2d 1082 (Fla. 1995); Mississippi Bar v. Land, 653 So.2d 899
(Miss. 1993); In re Herkenhoff, (866 P.2d 350 (N.M. 1993); In re Walker, 828 F.Supp. 594 (C.D. Ill.
1992)(all involving discovery violations), and see also, 810 P.2d 1237 (N.M. 1991); Vermont Ethics Op.
89-2 (both involving fraud).
11

Committee Opinion
December 10, 2004
c. Would the answers to parts “a” and “b” of this question change if the employee
provided the materials to the attorney after the start of litigation?
That the lawyer had already filed the lawsuit would be a pertinent fact in the analysis,
but the foundation of that analysis would remain as outlined above. Comment 2 to Rule
3.4(a) discusses the applicability of that provision to a “pending proceeding or one whose
commencement can be foreseen.”
d. Would the answers to parts “a” and “b” of this question change if the employee
took the materials without authorization?
As the term “without authorization” could apply to a range of conduct (such as merely
photocopying documents without express consent to stealing the original documents), the
committee can not provide a definitive answer to this question. However, the committee
notes that the method of acquisition would be crucial in the application of Rule 4.4
discussed in part “a” of this question.
e. What if the attorney’s failure to disclose the documents served to cover up the
employer’s illegal conduct and exposed the attorney to a charge of obstruction of
justice?
Rule 8.4(b) deems it professional misconduct for a lawyer to commit a crime that
reflects adversely on his honesty, trustworthiness or fitness to practice law. Whether the
attorney’s failure to disclose the documents constitutes “obstruction of justice” is a
question of criminal law outside the purview of this committee. However, the committee
notes that if failure to disclose the information would in some particular instance
constitute a crime, the attorney’s disclosure would be permissible under Rule 1.6(b)(1).
f. Does the requirement of the False Claims Act that requires that the plaintiff and
plaintiff’s counsel to refrain from notifying a defendant company of a lawsuit until
the Department of Justice has had an opportunity to review the case override any
possible ethical requirement for a lawyer to notify the employer about receipt of the
documents?
The discussion provided regarding part “b” above addresses this question.
6. The client comes to the attorney with documents that are not confidential, such
as the employee’s performance evaluation. The employee took the documents
without the permission of the employer. The company’s rule is that an employee
may read his own evaluation but does not get to keep it. No litigation is pending.
a. May the attorney review the documents and use the information he learns from
reading them?
As with earlier questions, this question comes down to the application of Rule 4.4 to the
present scenario. While the committee cannot determine the issue conclusively on the

Committee Opinion
December 10, 2004
limited facts provided, the committee notes that resolution of whether Rule 4.4 would
prohibit this lawyer’s use of the documents and the information depends on whether the
documents are originals or copies, whether any litigation is foreseen, how the employee
acquired the materials, and their relevancy to the potential litigation.
b. Must the attorney notify the employer and return the document?
As with similar questions above, this question comes down to the application of Rules
1.6(b)(1) and 3.4(a), regarding improper concealment of evidence. From the limited facts
provided, this committee is not in a position to determine whether the materials constitute
evidence. Also, even if the committee were to assume that the documents were evidence,
it would be outside the purview of this committee to determine whether the materials
were obtained in a manner that violates the legal rights of another (i.e., the employer). 12
c. Would the answers to parts “a” and “b” of this question change if the client
provided the materials to the lawyer after the start of litigation?
In resolving those questions, any attorney receiving the items after the start of litigation
would need to consider applicable rules of court and discovery orders in making the
determinations outlined with respect to the documents.
7. A client tells the lawyer about information the client learned by reading the
documents of a co-worker. The client did not have the employer’s permission to
review the documents. The information does not concern materials subject to either
the attorney/client privilege or the work product doctrine.
a. May the attorney use the information provided?
The analysis here is equivalent to that in the documents questions earlier; use of
information would be permissible so long as Rule 4.4 is not violated by that attorney’s
use.
b. Must the attorney notify the employer of the employee’s review of the
documents?
Normally, information a client tells a lawyer during the course of the representation
would come under the protection of the general duty of confidentiality. Therefore, this
attorney should not disclose the information unless his situation comes within one of the
exceptions to Rule 1.6, such as paragraph (b)(1), discussed throughout this opinion. The
scenario lacks sufficient detail for the committee to make a final determination of this
issue.

12

Of course, Rule 4.4 only prohibits conduct of the attorney, not the client; however, as noted earlier in the
discussion, Rule 8.4(a) prohibits an attorney from violating an ethical rule via the conduct of another.

Committee Opinion
December 10, 2004
c. Would the answers to parts “a” and “b” change if the client provided the
information to the attorney after the start of litigation?
Again, this committee lacks sufficient information to draw a conclusion on the issue;
however, rules of court and court orders regarding discovery may apply differently to the
analysis of this scenario involving an attorney/client conversation than in the prior
scenarios involving documents.
d. Would the answers to parts “a” and “b” change if the client reviewed a coworker’s document that contained communications between the employer and its
attorney and told that confidential information to the client’s attorney?
LEO 1702, as discussed above, directs procedures for the unauthorized receipt of
documents containing information subject to the attorney/client privilege or the work
product doctrine of an adverse party. The basic principle of the importance of preserving
attorney/client communications would be present here as well, yet the context is different.
In LEO 1702 there are actual documents that had been in the possession of the opposing
party’s counsel, and are now in the possession of the other attorney. Here, the adverse
party has not lost access to the documents or the information. Regarding the attorney’s
use of this oral information, the committee finds analogous to this scenario the situation
in LEO 1749. In that opinion, the committee opined that while a lawyer may interview a
former employee of an adverse party, that interview should not include questions about
communications between the employer and its attorney. Similarly, in the present
scenario, when the attorney learns that his client has read a document containing
attorney/client communications of its employer (the adverse party), the attorney should
direct the client not to share the information with the lawyer, explaining that his ethical
responsibilities include refraining from soliciting such information.
Regarding a duty to notify the employer or its counsel of the situation, this attorney can
protect his own client’s confidentiality and not inform the employer of the client’s
conversation. The requirement of notice in LEO 1702 is distinguished as inapplicable to
this conversation between a client and his attorney.
8. What if the client provides the attorney with documents that are not
confidential and would be unquestionably subject to discovery were litigation to
ensue, yet the client did take the documents without authorization?
As discussed in Question 5, part “d”, because the term “without authorization” could
apply to a range of conduct (such as merely photocopying documents without express
consent to stealing the original documents), the committee cannot provide a definitive
answer to this question. However, the committee again notes that the method of
acquisition would be crucial in the application of Rule 3.4(a) discussed in part “b” of
Question 5.
9. If a client provides documents to the attorney that the client wrongfully
procured, must the attorney inform the Commonwealth’s Attorney?

Committee Opinion
December 10, 2004

The phrase, “wrongfully procured,” lacks specificity needed for this determination.
The committee assumes the question contemplates original documents stolen by the
client. If the documents were not stolen, the attorney is in the situation already addressed
elsewhere in this opinion. With regard to stolen documents, the attorney may well have
additional legal obligations beyond the provisions in the ethics rules. Interpretation of
criminal law and procedure is outside the purview of this committee. Nevertheless, the
committee does suggest the attorney should be mindful of the leading case in Virginia
regarding an attorney’s receipt of the fruits or instrumentalities of a crime from a client,
In re Ryder, 263 F.Supp. 360 (E.D.Va. 1967). 13 If the attorney properly determines that
applicable judicial authority requires disclosure of the documents to the Commonwealth’s
Attorney, then the attorney may properly make the disclosure pursuant to Rule 1.6(b)(1),
discussed throughout this opinion.
10. A U.S. Attorney receives documents from a government informant. The
informant procured the documents from an organization without that
organization’s consent or knowledge. Can the attorney use the information and
must he disclose to the organization that he received the documents?
Rules 3.4(a) and 4.4 as discussed throughout this opinion can operate as restrictions on
an attorney’s collection of information and use of the information. In applying these
provisions to the U.S. Attorney in this scenario, the committee opines that the provisions
do not create per se bans on this form of data collection. Specifically, Rule 3.4(a)’s
prohibitions concerning concealment of evidence are limited in scope to those instances
in which the attorney is doing so “for the purpose of obstructing a party’s access to
evidence.” In contrast, the U.S. Attorney, where operating properly within the scope of
that office, collects the documents for the purposes of law enforcement and crime
prevention. Similarly, Rule 4.4’s prohibition regarding improper collection of evidence
precludes only those methods that violate the legal rights of another. Whether such rights
are violated in a particular incidence of a federal investigation is outside the purview of
this committee, as involving the interpretation of the law regarding criminal procedure
and the corresponding constitutional protections. The committee can only generally
conclude that where the collection of documents is part of the lawful operation of the
U.S. Attorney’s investigations, that attorney is ethically permitted to use the information
accordingly. See LEO 1765.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.
Committee Opinion
December 10, 2004

13

This committee considers documents to be within the scope of Ryder and its progeny. See LEOs 709,
551.