Evidence from Third Party Creates Legal and Ethical Issues

• Author: C. Thea Pitzen
• Pages: 14-15

14 | SEC TION OF LITIGATION

Imagine you represent t he plain-

tiff company in a civ il lawsuit

for theft of trade sec rets. A cor-

porate ofcer of your clie nt tells

you he has been approached by

a former employee of the defendant

company who claims the c ompany is

withholdin g importa nt documents

from discovery. This for mer employee

further cla ims to have a copy of data

that shows the defendant ’s possession

and use of your client’s trade sec rets.

Your client asks you to meet with thi s

former employee and take pos ses-

sion of the data. At rs t glance, your

situation may seem enviable. B ut the

Los Angeles Cou nty Bar Association

(LACBA) cautions that t he lawyer in

this position “is face d with competing

public policy considerat ions and dif-

cult ethic al and legal issue s.”

Lawyer Must Consider

Potential Crimina l Issues and

Privilege Concerns

The LACBA Professional Respon si-

bility and Et hics Commit tee consid-

ered the scenar io describe d above, and

the resulting Opi nion No. 531 advises

attorneys to answer t wo key ques-

tions in this sit uation. First, the lawyer

must determine wh ether the former

employee is lawfully in p ossession of

the data. If the a nswer is no, and the

lawyer nevertheles s takes possession of

the data or encourage s his client to do

so, the lawyer may be either e ngaging

in unlawfu l conduct or advising his

client to do so—bo th of which violate

applicable ethic s rules.

Second, the law yer must consider

whether the data i ncludes information

he “knows or reasonably s hould know

[is] privileged or subject to a cla im of

work product.” If it does, even thoug h

it was “transmitte d by a person other

than the holder of a privi lege,” the

lawyer should comply with the e thics

rule requiri ng that he refrain from fur-

ther examin ing the data and promptly

notify the priv ilege holder (Rule 4.4 in

California).

Opinion Tracks Eth ics Rules,

but Leads to Tough Calls

“The LACBA opinion i s consistent

with what the ethical rules require

when you receive evidence from a

third part y and what you are allowed

to do with it,” says Michael S.

LeBoff, New port Beach, CA, cocha ir

of the ABA Sec tion of Litigation’s

Professional Liability Litigation

Committee . Because the ethical ru les

Evidence from

Third Party

Creates

Legal and

Ethical

Issues

By C. Thea Pitzen, Litigation

News Associate Editor

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Published in Litigation News Volume 45, Number 2, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any

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