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FORMAL OPINION 1989-1

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).