PROFESSIONAL CONDUCT AND LEGAL ETHICS
By ALEC ROTHROCK
This article considers ethical issues raised when a client in pending litigation forwards her lawyer electronic documents that the client obtained without permission from the opposing party's computer.
Like the cat that capers into the house carrying a dead bird in its mouth, litigation clients believe they are being helpful when they forward emails or other documents to their lawyer that they obtained without permission from the opposing party's computer. But rather than helping, such actions plunge attorneys into an ethical morass.
The cat's owner can readily dispose of the bird's remnants. But the lawyer cannot simply delete the electronic documents and advise the client to do the same. Permanently deleting electronic information may constitute destruction of evidence of a crime or spoliation of evidence in a civil case, and it requires technological skill and effort. On the other hand, disclosing the material to the opposing party might incriminate the client, and opposing counsel might exploit the situation. The complexity of the problem increases when the purloined material consists of communications between the opposing party and her lawyer, which might be protected by the attorney-client privilege, or critical information helpful to the client's case, which the opposing party should have disclosed anyway.
The answers to such ethical quandaries lie in a mixture of legal ethics, criminal law, rules of civil procedure, and other substantive law, as applied to an infinite variety of facts. As one commentator aptly described it, thanks for the headache.1
This article analyzes ethical issues created when clients forward to their lawyers documents that they obtained without permission from the opposing party's computer. It does this by positing a hypothetical set of facts involving a lawyer's representation in a domestic relations case. The article addresses relevant rules of professional conduct; suggests an interim protocol to contain the problem while the lawyer attempts to sort it out; and analyzes factors the lawyer should consider in deciding how ultimately to react. It concludes with recommendations to minimize the problem or avoid it altogether.
The article does not address the similar but distinct problems associated with a lawyer's responsibilities upon receipt of documents sent to the lawyer inadvertently or anonymously.2
Lawyer, a sole practitioner, represents husband in a dissolution of marriage action. Husband moved out of the marital home where wife continues to live. During a birthday party for the couple's child, husband went to wife's house with her permission. He claims that he passed by wife's home computer and noticed that an email was open. Husband read the email, which confirmed his suspicion that wife is having an extramarital affair.
Husband returned to and entered the marital home a few days later, when it was empty. Husband has a key, but claims the door was unlocked. Husband searched wife's inbox for similar emails and discovered several. He also discovered emails between wife and her lawyer in the dissolution of marriage case and forwarded all of them to his own computer.
Subsequently, husband forwarded all these emails to Lawyer without indicating to Lawyer what he sent. Lawyer opened one of the forwarded emails and began to read it. It is one in a chain of several emails in reverse chronological order. After reading the first paragraph, Lawyer became alarmed at the content and noticed the names of the participants, which included Lawyer's opposing counsel. He immediately stopped reading, exited the document, and called his client.
Husband explained how he came into possession of the emails. Lawyer expressed deep displeasure with husband's actions and advised him never to do this again. Lawyer also told husband that he may have committed a crime but Lawyer cannot be certain because he is inexperienced and unfamiliar with criminal law. Husband asked Lawyer whether any of the material can be used in the case. Lawyer responded that he had think about it and went home for the day.
Potentially Applicable Rules of Professional Conduct
Lawyer must consult several Colorado Rules of Professional Conduct (Colo. RPC or Rules) as a starting point to determine what to do.
Colo. RPC 1.2(d)
In relevant part, Colo. RPC 1.2(d) states that a lawyer may not "counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . ." The threshold question is whether husband's conduct constitutes a criminal act. Lawyer, with his lack of experience in criminal law, decides to consult with Criminal Defense Lawyer, a former district attorney who is experienced in criminal law.
Criminal Defense Lawyer considers cybercrime to be the most directly applicable criminal law. It is possible, though less likely, that husband's conduct also falls under the federal Electronic Communications Privacy Act, which is broken down into the amended Wiretap Act and the Stored Communications Act.3 Cybercrime occurs when a person knowingly gains access to a computer without authorization, or exceeds that authorization.4 Cybercrime also occurs when a person knowingly gains access to a computer to commit theft.5
Criminal Defense Lawyer points out there is no indication that wife expressly authorized husband to access her computer or, more specifically, to read her emails. Husband's review of the original email violated no crime, he says, because it was open on wife's computer, similar to a letter left on a desk. Husband's subsequent access to and acquisition of the other emails is a different matter. Husband might have committed theft, which would constitute a continuing crime as long as he maintained possession of the electronic material. However, if the value of the material as electronic data was minimal, the crime might be a petty offense. The value of the material would likely be contested.6
Criminal Defense Lawyer posits a potential defense: If wife's computer is marital property, husband might have had a right of access to the computer without needing wife's authorization. Criminal Defense Lawyer concludes by expressing his firm belief that husband may or may not have engaged in cybercrime.
Back in his office, Lawyer calls a long-time colleague to discuss Lawyer's ethical obligations in the wake of the criminal law consultation.7 Colleague tells Lawyer that, given Criminal Defense Lawyer's ambiguous opinion, he would assume that husband's conduct constituted cybercrime or some other offense. However, because Lawyer was unaware that husband intended to gain access to wife's computer, Lawyer did not encourage or assist husband in violation of Colo. RPC 1.2(d).
Colleague opines that Lawyer could still violate Colo. RPC 1.2(d) depending on what he does next. A lawyer assists a client in criminal conduct if the lawyer suggests to the client how to conceal the client's "wrongdoing."8 A lawyer's continued possession of stolen material might constitute a continuing crime.9 The commentary to Colo. RPC 1.2(d) states the problem succinctly:
When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent.10
Colo. RPC 4.4
Colleague also discusses whether Colo. RPC 4.4 guides Lawyer's future conduct. Colo. RPC 4.4(a) prohibits a lawyer from "us[ing] methods of obtaining evidence that violate the legal rights of such a person." This includes obtaining information from third parties that invades the attorney-client privilege of one's adversary.11
Lawyer says he could not have violated Colo. RPC 4.4(a) because he had nothing to do with obtaining the emails; husband did it without his knowledge. Colleague responds that a lawyer in a 2016 Missouri attorney discipline case, In re Eisenstein,12 made the same argument when bar counsel accused him of violating an identical rule in very similar circumstances. There, the husband in a domestic relations case gained access to his wife's personal email account without her permission. He obtained his wife's payroll documents and a list of direct examination questions her lawyer had emailed to her before trial. The husband gave the information to his lawyer, who...