By Samson Habte
Ethics rules generally prohibit an attorney in a matrimonial case from
revealing her client's admission that the client has been reading his spouse's
email messages with opposing counsel, unless the lawyer knows that such conduct
is criminal or fraudulent, the New York State bar's ethics committee advised
Nov. 7 (New York State Bar Ass'n Comm. on Professional Ethics, Op. 945,
The committee stressed that its advice was tailored to address the facts of a
narrow inquiry, which indicated that “Although the client has not provided the
spouse's lawyer-client e-mails or disclosed their contents to the lawyer, the
client may be using knowledge of their contents in making decisions about the
The committee said the lawyer may be ethically required to disclose what she
knows--but only if “the client's conduct in reading the [emails] rises to the
level of a crime or fraud,” or if the law beyond professional conduct standards
Ultimately, the committee concluded that the attorney's knowledge regarding
the email interceptions is confidential information under New York Rule of
Professional Conduct 1.6(a). Accordingly, it said the lawyer “should admonish
the client to refrain from this conduct” but should not disclose what the client
is doing “absent an exception to the general duty to preserve a client's
The committee arrived at its conclusion through a process of elimination: it
cycled through, and dismissed the applicability of, several ethics rules that
arguably could override the attorney's Rule 1.6 duties.
Each exception was deemed inapplicable, but the committee cautioned that
minor factual variations could compel different conclusions in other cases.
Accordingly, the opinion is dotted with stipulations, provisos, and
qualifications, including a broad warning that judicial rulings and other
existing law may impose notification duties “that are independent of the ethics
rules and that go beyond the disclosure obligations” in those rules.
“The extent of any court-established disclosure obligations and whether they
apply to the inquirer's situation is a question of law that this Committee lacks
jurisdiction to answer,” the panel explained.
“If the inquirer reasonably believes that disclosure is necessary to comply
with applicable judicial decisions, such disclosure is permitted by Rule
1.6(b)(6),” it added, citing an exception to the confidentiality rule that
permits disclosures “when permitted or required under these Rules or to comply
with other law or court order.”
The committee first ruled out the applicability of Rule 4.4(b), which
requires attorneys who receive “inadvertently sent” documents from an opponent
to promptly notify the sender. “By its terms, this rule is not applicable,” the
opinion states, “since the lawyer has not 'received' the e-mails from the
opposing party or counsel or from anyone else.”
The rule may not apply even if the lawyer had “received” the emails, the
committee added. The committee cited two ABA ethics opinions which, it said,
suggest that Rule 4.4(b) would not apply “because the e-mails, although wrongly
obtained by the lawyer's client, have not been 'inadvertently sent.'” ABA Formal
Ethics Op. 11-460, 27 Law. Man. Prof. Conduct 543 (2011); ABA Formal Ethics Op.
06-440, 22 Law. Man. Prof. Conduct 358 (2006).
The opinion also determined that the lawyer's failure to disclose the
client's email pilfering would not constitute a violation of Rule 8.4(d).
“Although the client may have engaged in conduct prejudicial to the
administration of justice, the lawyer has not done so,” the panel said, because
the lawyer “has not received the e-mails and is not in a position to use
That fact, the committee said, distinguished the inquirer's situation from
the one discussed in New York City Ethics Op. 1989-1 (1989), which considered a
scenario in which a client provided an attorney with intercepted “written
communications” between the client's spouse and the spouse's counsel.
That opinion concluded that the lawyer would be obligated to notify the
opposing party that he possessed the communications even if the lawyer did not
intend to use them. The information conferred an advantage that should not be
retained “without the opposing party's awareness,” the opinion explained.
In the present scenario, the committee did warn that the inquirer's
confidentiality duties may have to yield to the duty of candor to a
That competing duty comes from Rule 3.3(b), which states that attorneys must
take “reasonable remedial measures, including, if necessary, disclosure to the
tribunal,” if they become aware that a client or other person intends to engage
in criminal or fraudulent conduct in relation to a proceeding. Rule 3.3(c)
stipulates that this duty applies “even if compliance requires disclosure of
information otherwise protected by Rule 1.6.”
The committee did not directly opine on the applicability of these
“crime-fraud exceptions,” however. “Because this Committee interprets only the
Rules of Professional Conduct and not other law, we do not express an opinion
whether the client's conduct in reading the spouse's lawyer-client e-mail
communications rises to the level of a crime or fraud,” it said.
But the committee suggested that the “reasonable remedial measures” Rule 3.3
requires may not “necessarily include disclosure of client confidences.” Because
the inquirer here had not gained access to the emails or their contents, it
said, “it may be a sufficient remedial measure for the lawyer to persuade the
client to cease the misconduct.”
Finally, the committee cited several decisions in which courts, “without
reference to the disciplinary rules, have found that lawyers have a notification
obligation in some circumstances where clients wrongly procure the opposing
party's documents.” See, e.g., Parnes v. Parnes, 915 N.Y.S.2d 345, 27
Law. Man. Prof. Conduct 65 (N.Y. App. Div. 2011), in which the wife in a divorce
action wrongly downloaded her husband's emails and provided them to her
attorney. The court stated: “we certainly do not condone the failure of
plaintiff's counsel to promptly notify defendant's counsel that she had obtained
the e-mails or her tactic of surprising defendant at his deposition by
questioning him regarding those privileged documents.”
These precedents, the committee warned, “may be intended to impose
obligations, pursuant to the courts' supervisory authority, that are independent
of the ethics rules and that go beyond the disclosure obligations of Rule 3.3(b)
and other rules.”
Full text at http://www.nysba.org/Content/ContentFolders/EthicsOpinions/Opinions901975/EO_945.pdf.
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