Ethics Opinion 119: Destruction of Attorney Memoranda to Client Which May be Sought in Pending or Future Litigation

Destruction of Attorney Memoranda to Client Which May be Sought in Pending or Future Litigation

Intentional destruction of attorney memoranda which the attorney knows may be the subject of discovery or subpoena in pending or imminent litigation is conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). In the absence of pending or imminent litigation, whether destruction of such memoranda violates any Disciplinary Rule depends on (1) whether there is a legal obligation to preserve the memoranda or (2) whether destruction of the memoranda would prejudice the client.

Facts
An attorney wishes to discard legal memoranda which were prepared and presented to his client in 1977, 1978 and 1979, and which he believes are protected by the attorney-client privilege. He believes that disclosure of the contents of his advice to his client could prejudice his client’s interests. In a case which has since been settled the court ordered production of the memoranda, rejecting the argument that they were protected by the attorney-client privilege. Because of the settlement the memoranda were not produced. Another case against his client raises one of the same issues as the settled case and is still pending. There has been no request for the memoranda in the course of that case, and discovery has closed. The attorney considers it possible that further cases may be filed against his client in which further requests may be made for the memoranda.

The attorney inquires whether he would violate his ethical responsibilities by failing, to retain the memoranda in question.

Discussion
1. Pending Case
The inquiry relates to both a pending case and possible future cases. [1] We first address the question of a lawyer discarding documents in order to avoid a potential obligation to produce them in a pending case. DR 1-102 is entitled "Misconduct." The fifth form of lawyer misconduct listed in the rule is contained in DR 1-102(A)(5): "a lawyer shall not . . . (5) engage in conduct that is prejudicial to the administration of justice."

(a) Administration of Justice
In order to determine the applicability of the rule we must first determine what is meant by the "the administration of justice." The phrase is vague, and could arguably embrace virtually all activities of a lawyer. Such a broad reading of the phrase would render much of the rest of the rule superfluous and, indeed, much of the Code of Professional Conduct. However, the context, the case law and the history of DR 102(A)(5) suggest a narrower reading. Case law holds that statutes which forbid corruptly impeding the "administration of justice" apply to actions taken in the course of "some sort of judicial proceeding." See, e.g., United States v. Simmons, 591 F.2d 206, 208 (3rd Cir. 1979). While it is not entirely clear whether all such statutes apply to actions taken in the course of private civil litigation, DR 1-102(A)(.5) applies to civil as well as criminal proceedings. See Matter of Lieber, 442 A.2d 154 (D.C. App. 1982) (disciplinary investigation); Matter of Burka, 423 A.2d 182 (D.C. App. 1982) (conservatorship); Matter of Keiler, 380 A.2d 119) (D.C. App. 1977) (arbitration). The phrase "administration of justice" is drawn from former ABA Canon 22, which required candor and fairness to the court and drew no distinction between criminal and civil proceedings. Indeed the other elements of old Canon 22 which now appear in ethical considerations and disciplinary rules under present Canon 7 have been applied to both criminal and civil proceedings. We conclude that DR 102(A)(5) prohibits misconduct by a lawyer that is prejudicial to courts’ conduct of the pending civil litigation here.

(b) Prejudicial Conduct
The process of discovering and presenting evidence to the court is central to our system of justice. The destruction of potential evidence strikes at the heart of the litigation process. Thus, if there were outstanding discovery requests for the memoranda, destruction would obviously be prejudicial misconduct. The inquirer emphasizes that discovery in the case has ended, but where, as here, the lawyer knows the document is potentially relevant evidence, the possibilities that discovery could be reopened or that the memoranda could be subpoenaed at trial strongly suggest a continuing threat of prejudice from destruction of these documents. Indeed, a purpose of destruction would be to avoid production in the pending case. Thus, the critical facts here are not the close of discovery but the continued pendency of the litigation, the concomitant interest of the court in evidence which may bear on the case, the attorney’s intent to avoid production, and the finality of the act of destruction. [2] Of course, the memoranda may never be requested and if requested it is possible that the court will not require their production. But so long as a case is pending, destroying a document which the lawyer knows is potential evidence removes the judge’s ability to determine whether the potential evidence should be produced. Such displacement of the court’s authority would prejudice the administration of justice, in violation of DR 1-102(A)(5). While a lawyer is, of course, bound to preserve confidences and secrets of a client and should zealously protect attorney work product, he or she may not unilaterally determine that a particular attorney memorandum to a client potentially discoverable in pending litigation should be destroyed in order to prevent production. The proper course is to preserve the document, while vigorously presenting the privileges as a defense to efforts to discover the document.

2. Potential Cases
The inquirer also asks whether the potential that future cases may be brought precludes discarding the memoranda. No disciplinary rule contains an explicit general prohibition against the destruction of documents potentially pertinent to future litigation. However, in some instances such destruction would violate the Code of Professional Responsibility. [3]

(a) Conduct Prejudicial to the Administration of Justice
While DR 1-102(A)(5) is directed primarily toward pending litigation, some circumstances may be so close to pending litigation that the Rule would apply even though no pleadings have yet been filed with the Court. For example, if counsel has received notice from an aggrieved person’s lawyer, stating that suit will be filed imminently, DR 1-102(A)(5) would bar , the lawyer from destroying documents he or she knows are potential evidence in the anticipated litigation. There may be other instances when objective facts so strongly suggest that suit is imminent that intentional destruction of documents because they are potentially pertinent evidence would prejudice the administration of justice. The test in each, instance is whether the document destruction is directed at concrete litigation, either pending or almost certain to be filed. The needs for certainty as to when the rule applies and for flexibility of action by the lawyer dictate that the rule’s application be thus confined. We therefore are not prepared to say that a mere belief that a matter is likely to be litigated is sufficient under DR 1-102(A)(5) to bar otherwise permissible destruction of attorney memoranda relating to the matter. The inquiry here does not provide sufficient information to allow us to determine whether DR 1-102(A)(5) would prohibit destroying the documents in the event the one presently pending suit were terminated.

(b) Legal Requirements
Under DR 7-102(A)(3) a lawyer "shall not . . . conceal or knowingly fail to disclose that which he is required by law to reveal." See also DR 7-109(A) ("A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce");

EC 7-27; DR 7-102(A)(7) (a lawyer may not conceal or assist illegal conduct). Federal criminal law may forbid destruction of documents under certain circumstances. [4] It is also a crime in the District of Columbia for one who knows or has reason to believe an official proceeding has begun or who knows that an official proceeding is about to begin, to destroy a document with intent to impair its availability for use in the proceeding. D.C. Code S22-723 (1981 Ed.). Further, destruction of documents pertinent to pending litigation may run afoul of discovery rules having the force of law. Such rules could conceivably apply in some circumstances to future litigation as well. Thus, whether destruction of the memoranda in question would violate DR 7-102(A)(3) or (7) or DR 7-109(A) depends on the requirements of federal and D.C. law. There is a substantial body of case law under some of these statutes. However, since the Ethics Committee renders opinions only under the Code of Professional Responsibility, we offer no view as to whether destruction would violate these statutes. Rather, we note that DR 7-102(A)(3) requires that, in deciding whether to destroy the memoranda, the attorney should take reasonable steps to determine the legality of such destruction. [5]

(c) Fraud
DR 7-102(A)(7) forbids a lawyer to "counsel or assist his client in conduct that the lawyer knows to be . . . fraudulent." The Committee has previously interpreted "fraudulent" in DR 7-102(A)(7) in another context as "false or misleading" (Opinion No. 79), and it has elsewhere been noted that "’fraud’ almost always means acts of affirmative misrepresentation rather than failure to disclose material facts." Legal Ethics and the Destruction of Evidence, 88 Yale L.J. 1665, 1667 (1979). Thus, it seems unlikely that destruction of memoranda which an attorney has prepared for a client would be considered fraudulent.

(d) Prior District Court Ruling
The question remains whether a trial court ruling that the attorney memoranda must be produced in one case creates an ethical obligation to preserve the memoranda because parties in future cases are likely to seek their production. DR 7-106(A) provides: "A lawyer shall not disregard or advise his client to disregard . . . a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling." The obligation imposed by the rule does not extent beyond the proceeding in which the ruling was made. While the term "proceeding" may in some circumstances encompass more than one case, the discovery order here probably does not apply to future cases. The discovery order in question here was mooted by the March 1981 settlement. It presumably does not purport to govern future cases. Therefore, unless some fact not before the Committee shows that future cases are part of the same "proceeding" as the case settled in 1981, DR 7-106(A) does not prohibit destruction of the attorney memoranda.

(e) Prejudice to Client
Under DR 7-101(A)(3) "a lawyer shall not intentionally . . . prejudice or damage his client during the course of the professional relationship . . . ." While the attorney here may properly consider prejudice which may result from disclosing the memoranda, such potential prejudice would not justify violating a disciplinary rule barring destruction of evidence. Furthermore, the attorney should also consider the potential impact on his client if potential evidence is destroyed. For example, if future litigation might raise the issue of the client’s intent in following a course of conduct discussed in the attorney memoranda, destruction of the memoranda might well result in negative inferences regarding the client’s intent. The attorney would have an obligation to advise the client to answer truthfully questions regarding the destruction and content of the document, if efforts to assert the attorney-client privilege fail in subsequent litigation as they did in the settled litigation. Thus, whether DR 7-101(A)(3) bars destruction depends on whether the attorney reasonably concludes that destruction of the memoranda will prejudice or damage his client, EC 7-3 suggests that the lawyer, in such a situation, "should give his professional opinion (to the client) as to what the ultimate decisions of the courts would likely be as to the applicable law."

(f) Privilege
This opinion does not depend on resolution of the question whether the memoranda are protected by the attorney-client privilege. Even if the memoranda constitute confidences or secrets of the client normally protected by DR 4-101(B) or the attorney-client privilege, [6] a court or the Disciplinary Rules may in some circumstances require their disclosure. Where disclosure is thus required, the exception to DR 4-101(B) allows disclosure. [7]