Divorce Attorney Should Not Disclose That Client Is Reading Spouse’s Legal Emails

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, 11/7/12).

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 litigation.”

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 requires disclosure.

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 confidential information.”

Context Is Key.

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.

“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).”
New York State Ethics Op. 945

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.”

Not 'Inadvertently Sent.'

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).

Not 'Prejudicial to Justice.'

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 them.”

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.

Reasons for Caution.

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 tribunal.

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.”

Other Consequences.

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.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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