Washington Lawyer

Legal Ethics: Opinion 318 Disclosure of Privileged Material by Third Party

From Washington Lawyer, April 2003

(Addressing the issue of counsel receiving opposing parties privileged material, Opinion 318 includes as authorities Opinion 256 and Rules !.1 (a) and (b), 1.3(a), 1.6(a) and (e), 1.15(b), and 8.4(c) )


… Does receiving counsel violate the D.C. Rules of Professional Conduct by reviewing and using what may be a privileged document in an adversary proceeding that receiving counsel’s client or other person obtained from a third party who may have stolen the document or taken it without authorization?

The ethics rules are silent on the review and use of privileged materials which may have been stolen or otherwise acquired without permission from their rightful owners by third parties…. The guiding principles most pertinent to our problem relate to the primacy given in the ethics rules to confidentiality, zeal, and fair dealing with opposing counsel.

…(T)he need to protect the confidentiality of the attorney-client relationship permeates the ethics rules… Maintaining confidentiality is so essential that a lawyer is required to exercise reasonable care to prevent others with whom the lawyer works from disclosing or using a client’s confidences or secrets. Rule 1.6(e). …

While fidelity to the principle of protecting client confidentiality is a basic tenet of the rules, so is the notion that in the exercise of professional judgment, a lawyer should act in a manner consistent with the best interests of the client. Rule 1.3(a), Comment [5]. The rules require that a lawyer represent a client zealously within the bounds of the law. Rule 1.3(a). This may have implications for a lawyer who gains access to a document that can beneficially be used on a client’s behalf in an adversary proceeding without first being aware that it is privileged. But such an attorney is also constrained by ethical principles of fair dealing. Rule 1.15(b), for example, requires a lawyer who receives property in which third persons have an interest to notify these persons and promptly deliver the property to them. … A lawyer who reviews and uses material that he knows is privileged may be engaging in a dishonest act in violation of Rule 8.4(c). See D.C. Ethics Opinion 256 n.8.

…(T)he Committee previously concluded that receiving lawyers engage in no ethical violation by retaining and using those materials if they review them in good faith before the inadvertence of the disclosure is brought to their attention. D.C. Ethics Op. 256. Under that Opinion, however, receiving lawyers must return privileged documents without reviewing them if they learn about their privileged nature before reviewing the documents. Opinion 256 further reflects that lawyers who make the inadvertent disclosures may violate Rule 1.1 if they do so by failing to exercise diligence and care during a representation.

(A) lawyer cannot, consistent with the Rules of Professional Conduct, solicit or otherwise encourage a client or other person to obtain privileged or documentary evidence in an unlawful or unauthorized manner. If a lawyer receives materials that are privileged on their face, having a reasonable basis to conclude that the privilege has not been waived and that they have been obtained without authorization, he may violate Rules 1.15(b) and 8.4(c) by reviewing the material or by using it in an adversary hearing. …

The more difficult questions relate to situations in which a receiving lawyer does not have such knowledge of the document’s origin prior to conducting a review, or if the status of a document is unclear. A lawyer may still violate the ethics rules if the source and status of documents can be inferred from circumstances at the time he received them because “knowingly” is so defined in the Terminology Section of the Rules, Definition 6. Whether knowledge can be inferred from circumstances is fact specific. …

A receiving lawyer would not violate Rules 1.15(b) and 8.4(c) by reviewing and using the document whose source is unknown if: 1) its privileged status is not readily apparent on its face; and 2) receiving counsel did not know that the document came from someone who was not authorized to disclose it. If the privileged status of the document does not become apparent to receiving counsel until after the document has been reviewed, as reflected in D.C. Opinion 256, it is too late for receiving counsel to take corrective action because the information cannot be purged from his mind and his obligation of zealous representation under Rule 1.3 at that point trumps confidentiality concerns. The Committee takes no position with reference to the question whether review and use of documents that are confidential, but non-privileged would violate Rules 1.15(b) and 8.4(c) because it is outside the scope of the inquiry.

The Committee concluded in Opinion 256 that a receiving attorney could reasonably presume that documents were intended for him when they are disclosed to him by opposing counsel. This may not be the case when documents are disclosed to a lawyer by a third party. In such a situation, a receiving counsel may violate the ethics rules if be knowingly received privileged documents, had no basis to conclude that the privilege had been waived, and reviews and uses them anyway.

…(I)t would be unethical to read a document if the lawyer knew before reading it that it was privileged and that it had been sent inadvertently. The same would be true if receiving counsel reads a document that he knows is privileged and was either stolen by a third party or taken without authorization, unless he has a reasonable basis to conclude that the privilege was waived as to that document. …

… (A) receiving attorney proceeds at his own risk if indicia of a privileged document do exist and there is not a reasonable basis to conclude that the privilege has been waived. …

…, (W)here the source of the document and/or its privileged status is less clear …the prudent course for a receiving lawyer might be to contact the opposing party and raise the issue directly, have another lawyer not working on the matter assess the document separately to help determine whether it is privileged, or refrain from reviewing the materials until a definitive resolution of the proper disposition of the materials is obtained from a tribunal. …

It also bears repeating that internal (or outside) counsel having the responsibility for protecting privileged documents that subsequently are “leaked” may violate Rules 1.1(a) and (b) and 1.6(a) and (e) if they fail to exercise reasonable care to prevent the unauthorized disclosure of their client’s confidences and secrets.

Again, any such determination is fact specific. …

Adopted: December 2002