The LA County Bar Association was called upon to answer the following question: In litigation, what are a lawyer’s ethical obligations when offered evidence retained by a former employee of the opposing party who reveals that relevant documents have been concealed from production?
“The first question the lawyer must address is whether Witness is lawfully in possession of the data. Lawyer must carefully evaluate the facts and determine not only whether possession of the data is proper, but also whether lawyer may lawfully and ethically review it. Lawyer is prohibited from facilitating, taking advantage of, engaging in, advising or assisting others to engage in criminal conduct. If Lawyer is not competent to make this evaluation, Lawyer should consult with a practitioner who is competent in criminal law. If Lawyer concludes that Witness’s acquisition or possession of the evidence was a crime and Lawyer has taken possession of it, Lawyer may be ethically required to turn the evidence over to the court or the appropriate authorities.
“The second question the lawyer must address is whether the data includes writings the lawyer knows or reasonably should know are privileged or subject to a claim of work product. Lawyer is prohibited from accessing the content of privileged communications between the adverse party and opposing counsel. Analogizing to the rule and applicable case law governing inadvertently produced documents subject to the attorney-client privilege or work product protection, once it is reasonably apparent to the Lawyer that privileged documents of another party or documents entitled to work product protection have been obtained, Lawyer will be ethically obligated to give notice to the privilege holder, the owner of the work product or their counsel, and discontinue review of the material beyond the extent necessary to ascertain that they are entitled to such protections as provided by the rules.
“Because Witness is an unrepresented person and not a current employee of the adverse party, Lawyer is not prohibited from communicating with Witness, but may not state or imply that Lawyer is disinterested. Lawyer also may not seek to obtain privileged or other confidential information from Witness that Lawyer knows or reasonably should know Witness is not entitled to reveal without violating a duty to another, or which Lawyer is not otherwise entitled to receive.
“If receiving access to the evidence from Witness is a significant development or leads to any relevant limitation on actions the client expects Lawyer to take, Lawyer must reasonably consult with the client regarding the means by which to accomplish the client’s objectives, including keeping the client reasonably informed and advising the client regarding any limitations imposed on Lawyer’s conduct by the Rules of Professional Conduct and the State Bar Act. Such communication should include discussion of the significance of this development and the potential consequences of the client’s proposed course of action. Lawyer may not participate in, advise or assist Employee or the client to gain unlawful access of information that is confidential, privileged or subject to work product protection.”
Los Angeles County Bar Association Ethics Opinion No. 531 (July 24, 2019).