Year 1989 Ethics Opinions
THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK
FORMAL OPINION 1989-1
COMMITTEE ON
PROFESSIONAL AND JUDICIAL ETHICS
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March 13, 1989
ACTION: Formal
Opinion
OPINION:
A matrimonial action is pending
between a husband and wife who reside together. Each of the
spouses is represented by separate counsel. We have been asked to
address the ethical obligations of the lawyer for one of the
spouses when his client intercepts certain communications between
or involving the other spouse and that spouse's counsel.
In particular, three questions are
posed: (1) whether the inquirer would violate any ethical
obligation if he advised his client to intercept and copy,
without consent, written communications between the other spouse
and the latter's counsel; (2) whether the ethical obligations are
altered if the non-client spouse had first initiated the
practice; and (3) assuming the client engaged in this practice
without any suggestion, recommendation or initiative from the
inquirer, whether any ethical constraints are imposed on the
inquirer's use of such communications to advance his client's
cause in the matrimonial action.
With respect to Questions 1 and 2,
we assume from the facts submitted by the inquirer that the
proposed advice would counsel the client intentionally to open
sealed mail to or from the non-client spouse's lawyer, and that
the communications are likely to be protected by the
attorney-client privilege or work-product doctrine. For the
purposes of Question 3, we assume that the inquiring lawyer has
not learned of the interception and copying until after they have
occurred.
SUMMARY OF CONCLUSIONS
This inquiry presents mixed
questions of law and professional ethics. The underlying legal
questions are whether the actions of the client-spouse constitute
a civil or criminal wrong and whether a lawyer's support of such
behavior is similarly a violation of applicable law (Question 1
and Question 2). An additional question raised is whether the
communications (and any evidence derived therefrom) are
admissible in the litigation. These questions, which can be
resolved only by a court of law, are not within the scope of this
Committee's jurisdiction, and no opinion is expressed as to their
resolution.
As a matter of legal ethics,
however, the Committee concludes that it would be improper for a
lawyer to counsel his client to intercept and copy communications
to or from the other spouse's lawyer. Such advice would promote
conduct that demonstrates a lack of candor and fairness towards
the opposing lawyer and the other spouse. The Code of
Professional Responsibility, as well as prior opinions of this
Committee, forbid a lawyer from engaging in such tactics.
The mere fact that the non-client
spouse initiated the practice does not alter the Committee's
conclusion. The other spouse's initiation of the practice is not
a justification for retaliation. To countenance retaliation would
serve only to debase the legal profession.
Where the inquirer has not
suggested or initiated the practice in any way, the question to
be resolved is whether any ethical obligations or prohibitions
constrain the inquiring attorney's use of the copied
communications. The Committee concludes that, regardless of
whether the lawyer counseled the client to engage in this conduct
or even knew that the client was so engaged, it would be
unethical for the lawyer to use any intercepted communications to
advance the client's position unless and until the lawyer (i) has
disclosed to adversary counsel the fact that the documents have
come into the lawyer's possession and (ii) has provided copies to
adversary counsel. Even if the lawyer does not intend to make
affirmative use of the documents, the lawyer must promptly
disclose his possession of the documents and return them or
copies of them. Because the intercepted communications were
received by the lawyer in the course of the professional
relationship, however, the lawyer may not make such disclosure
without the consent of the client. DR 4-101(B). If the client
refuses to permit disclosure or the return of the documents to
the adversary, the lawyer must withdraw from the representation.
DR 2-110(B).
DISCUSSION
I
As to the first question, we
assume, as noted above, that the proposed advice counsels that
the client intentionally copy communications to or from the
non-client spouse's lawyer, communications that are likely to be
protected by the attorney-client privilege or work-product
doctrine.
Under these stated assumptions, a
lawyer who advises a client to open such mail engages in conduct
that demonstrates a lack of consideration, candor and fairness to
adversary counsel and the other person. See DR 7-102(A)(7); EC
7-10. Without expressing an opinion as to whether the client's
conduct would constitute an actionable civil or criminal wrong,
we simply note that if such conduct is illegal, it is equally
unethical for a lawyer to counsel that course of action. DR
7-102(A)(7).
Regardless of the ultimate
determination of the act's legality, advising a client to
intercept communications between another person and that person's
lawyer displays a lack of consideration, candor and fairness with
respect to the private and confidential nature of the
attorney-client relationship. Unlike more explicit ethical
prohibitions, "concepts like candor and fairness take their
content from a host of other sources which . . . reflect a
consensus of the bar's or society's judgment." N.Y. City
80-95. To counsel a client to open mail between the opposing
party and the latter's attorney in the course of litigation is
inconsistent with these concepts because it involves a deceitful
invasion of privacy and an unjustifiable intrusion into
attorney-client communications. Our concern with candor and
fairness is also heightened here because the initiator of the
practice is aware that the source or addressee of the
communications is an adversary lawyer -- the very person who has
been relied on to preserve confidences and secrets of a client.
See DR 4-101(A), (B). Furthermore, counseling the opening of mail
implicates Code provisions prohibiting deceitful conduct by
lawyers. See DR 1-102(A)(4); see also DR 1-102(A)(3), (5); N.Y.
City 80-95.
In analogous situations, this
Committee has condemned a lawyer's participation in surreptitious
recording of communications involving opposing lawyers and their
clients. In N.Y. City 683 (1945), a client, in order to assist
his daughter in obtaining evidence of her husband's infidelity,
proposed to have a dictaphone or dictagraph installed in the
husband's residence. The Committee unequivocally stated that:
it would be inconsistent with the
honor and dignity of the profession . . . for a lawyer to
facilitate the proposed arrangements, either by his own direct
participation or by advice to his client.
We condemned the proposed
surreptitious recording under both Canon 29, requiring a lawyer "to uphold the honor and to maintain the dignity of the
profession," and Canon 32.
In N.Y. City 836 (1958), we were
asked to determine whether it would be ethical for a lawyer to
tape-record telephone conversations with another lawyer without
first obtaining that lawyer's consent. We concluded that
recording opposing counsel's statements would violate a lawyer's
obligation to treat other lawyers with "candor and
fairness." See also N.Y. City 813 (1956) (lawyer's use of
concealed tape-recorder not consistent with duty of candor and
fairness); N.Y. City 624 (1942) (lawyer's secret recording of
settlement negotiations where adversary made vital admissions was
"clearly unethical"); ABA Inf. Op. 1320 (1975)
(lawyer's conduct in recording or causing to be recorded colloquy
between investigator and sales clerk held unethical); see
generally ABA Op. 337 (1974).
More recently, this Committee was
asked to consider whether the Code permits a defense lawyer in a
criminal case secretly to record conversations with witnesses. We
concluded that the practice was permissible in the exceptional
circumstances there involved, but emphasized that "[w]e
continue to view as unethical secret recordings of lawyers or
clients in any context, and secret recordings of any persons in
civil or commercial contexts." N.Y. City 80-95.
The surreptitious recording of an
adversary's communications bears strong similarity to the opening
and copying of mail between lawyer and client. Moreover, several
of the cited opinions arose from situations where both lawyers
were actually conversing at the time of the recording. This
inquiry presents a stronger case for condemning the practice, for
the communication medium between lawyer and client involved here
necessarily was intended to exclude the inquirer and the
client-spouse; the inquirer's adversary was entitled to expect
that his communications would remain private vis-a-vis the
inquirer and the inquirer's client.
In addition, we note that a lawyer
is obligated to conform his behavior so as to promote "public confidence in the integrity . . . of the legal
system. . . ." EC 9-2. The public would have less confidence
in a legal system that sanctioned the interception and copying of
communications between an opposing party and its counsel.
II
The inquirer next asks whether the
Committee's conclusion would be different if the non-client
spouse had initiated the practice of opening such communications
and the client-spouse merely did the same in retaliation. Our
communications and the client-spouse merely did the same in
retaliation. Our conclusion would remain the same. The Code's
prohibitions against engaging in dishonest or deceitful conduct
(DR 1-102(A)(4)) or assisting a client in conduct a lawyer knows
to be fraudulent (DR 7-102(A)(7)) are not conditioned upon the
blamelessness of the conduct of the opposing party or counsel.
Therefore, the other spouse's initiation is not a justification,
and we cannot endorse the proposed form of self-help. Because a
matrimonial action is pending, however, the client-spouse may
seek relief from the court. If the non-client spouse's lawyer
counseled or otherwise participated in the interception, that
lawyer's conduct should be brought to the attention of the
appropriate Departmental Disciplinary Committee. DR 1-103(A).
III
The third question posed is
whether the inquirer is under any ethical obligations or
constraints in using the intercepted and copied communications to
advance his client's cause in the matrimonial action, assuming
the interception and copying occurred without any suggestion or
other participation, or even knowledge, by the inquirer. n1 The
Committee concludes that the inquirer may not offer the
intercepted communications in evidence, quote from them in court
papers or otherwise make affirmative use of them in the
matrimonial action unless and until the inquirer has disclosed to
his adversary the fact that the documents have come into the
inquirer's possession and has returned the documents (or copies)
to the adversary (see Section III(A) below). The Committee
further concludes that even if the inquirer does not propose to
make affirmative use of the intercepted documents, the inquirer
has an obligation to disclose his possession of the documents and
to return them or copies of them (see Section III(B) below).
Finally, the Committee concludes that the foregoing disclosure
obligation is contingent upon the consent of the inquirer's
client; if that consent is withheld, the inquirer must withdraw
from the representation (see Section III(C) below).
n1 If the inquirer had known that
his client intended to intercept and copy communications between
the other spouse and the latter's counsel, this Committee
believes that the inquirer would have been under an obligation to
remonstrate with his client not to engage in such conduct. Cf. DR
7-102(B)(1). The Committee's views set forth in Section III of
this opinion apply whether or not the inquirer has advance notice
of his client's interception.
A. Any proposed use of the
intercepted documents by the inquirer may implicate the following
questions of law. First, DR 7-106(C)(1) prohibits lawyers from
making statements not supported by admissible evidence, which
would necessarily include knowing violations of the rules of
evidence. See also EC 7-25. As noted above, this Committee can
express no opinion regarding the effect that the method of
obtaining the documents may have on their admissibility. Second,
DR 7-102(A)(7) prohibits a lawyer from counseling or assisting a
client in conduct that the lawyer knows to be unlawful. Whether
the interception of the documents under the circumstances was
unlawful is, as noted above, also a question of law upon which
this Committee cannot opine. However, whether or not the
interception was unlawful, it plainly involved an element of
dishonesty and deceit, and "irrespective of whether the
lawyer was himself a party to this act of wrongdoing, he should
not help his client take advantage of such wrongdoing by
embracing it and using it to promote the client's cause." N.Y. City
832; see also DR 1-102(A)(4) and (5).
The Committee is mindful of the
fact that while a lawyer may not engage in conduct involving
dishonesty or deceit (DR 1-102(A)(4)) or conduct that is
prejudicial to the administration of justice (DR 1-102(A)(5)),
the lawyer does at the same time have an obligation to represent
a client zealously within the bounds of the law, Canon 7; EC 7-1,
and that a court might hold that any wrongdoing involved in
obtaining the documents would not necessarily render them
inadmissible. See, e.g., Sackler v. Sackler, 16 A.D. 2d 423 (2d
Dept. 1962), aff'd, 15 N.Y. 2d 40 (1964). In view of these
considerations, the Committee believes that if the inquirer
discloses to his adversary that the inquirer has the documents
and the circumstances under which they were obtained and returns
the documents or copies to the adversary, it would not be
unethical for the inquirer to attempt thereafter to use the
documents in support of his client's cause, for the element of
deceit or dishonesty will have been exposed and the adversary
will have an opportunity to seek judicial relief against use of
the documents in the action.
B. Whether the inquirer must
disclose (or call upon his client to disclose) his possession of
the documents and return the documents or provide copies if the
inquirer does not intend to make affirmative use of them in the
action presents a more difficult question, but the Committee
concludes that it must be answered in the affirmative. The
inquirer and his client are privy to communications between the
opposing party and counsel that are likely to be privileged and
that, whether or not privileged, were obtained otherwise than
through normal discovery procedures. Having such information
gives the inquirer and his client an advantage that, however
slight, they are not entitled to have, and to permit them to
retain that advantage, of which the opposing party and counsel
are unaware, would in the Committee's opinion be prejudicial to
the administration of justice and, therefore, ethically
impermissible. DR 1-102(A)(5). Moreover, the client's
interception and copying of confidential communications
constituted a fraud upon the other spouse, and the inquirer has
an obligation under DR 7-102(B)(1) to call upon his client
promptly to rectify the fraud. If the client refused to do so and
if the interception were not a "secret" under DR
4-101(A), as we conclude below it is, the inquirer would then be
obligated to reveal the fraud to the other spouse's counsel. Id.
C. The inquirer received the
intercepted communication from his client in the course of their
professional relationship, and the revelation of the client's
conduct "would be embarrassing or would likely be
detrimental to the client." Thus, the fact that the inquirer
has obtained the documents through an unauthorized interception
is a "secret" within the meaning of DR 4-101(A), which
the inquirer may not disclose without the client's consent. If
the client withholds that consent, then the inquirer is obligated
to withdraw from the representation (with the court's permission
if required by its rules), because continued employment will, the
Committee has concluded, result in violation of one or more
disciplinary rules. See DR 2-110(B).
