ETHICSearch receives 200-300 calls per month from ABA member lawyers, non-member lawyers and the general public. The following are some of the more unusual, interesting and frequently asked questions. ETHICSearch welcomes reader comments. If you are familiar with materials relevant to the inquiries in this or past columns, please send them to Peter Geraghy c/o The Professional Lawyer.

Inquiry:
A lawyer works for a government agency and represents the agency in litigation matters. On several occasions, in different matters, the lawyer has received documents from opposing counsel that appear to be privileged and/or confidential and that tend to show that opposing counsel's client has either violated agency regulations or provided misleading or false information to the agency. Opposing counsels' disclosure of these documents appears to have been intentional.

The inquiring lawyer speculates that opposing counsel make such disclosures in order to protect themselves because they believe that their client either has violated the agency's regulations and is attempting to conceal it or is attempting to mislead the agency contrary to their advice.

Under the circumstances, what must the government lawyer do with these documents? In light of ABA opinions 92-368 (Inadvertent Disclosure of Confidential Materials) (1992) and 94-382 (Unsolicited Receipt of Privileged or Confidential Materials) (1994) does the lawyer have an obligation either to refrain from using the documents or to return them once he/she determines that they are confidential and/or privileged?

Response:
There were no ethics opinions found that are directly on point. ABA Formal Opinion 94-382 discusses what a lawyer should do when he receives privileged and/or confidential documents of an adverse party on an unauthorized basis. Under the facts of the current inquiry, it is unlikely that the client has authorized the disclosure. However, the facts of Formal Opinion 94-382 suggest that the disclosure has been made by someone other than the opposing party's lawyer, since the opinion directs the receiving lawyer to notify her adversary's lawyer that she has received the documents. The opinion states:

Unlike the situation that we addressed in Opinion No. 92-368, the receiving lawyer in the instant circumstances did not receive the allegedly confidential and/or proprietary materials through mere inadvertence and the receiving lawyer was not an unintended recipient of the material. In certain circumstances, the law may recognize some right to the use of the materials despite the fact that the sender had no authority to transmit them . . .

An absolute rule, couched in terms of professional responsibilities, that required a receiving lawyer to return such materials could prejudice the legitimate rights of the receiving lawyer's client to employ such materials in the prosecution or defense of a legal action. For this the Standing Committee is of the opinion that a lawyer receiving such privileged or confidential materials satisfies her professional responsibilities by (a) refraining from reviewing materials which are probably privileged or confidential, any further than is necessary to determine how appropriately to proceed; (b) notifying the adverse party or the party's lawyer that the receiving lawyer possesses such documents; (c) following the instructions of the adverse party's lawyer; or (d) in the case of a dispute, refraining from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.

The applicability of this opinion to the facts of the instant inquiry is unclear, since under the circumstances it would serve no purpose for the lawyer to notify the adverse party's lawyer that he has received the documents, or to follow the adverse party's lawyer's instructions since it is the adverse party's lawyer who has made the disclosures. As an alternative, the opinion suggests that the lawyer obtain guidance from a court, but limits this option to those circumstances in which there is a dispute.

Several state bar opinions have been issued on the topic of what a lawyer should do when he receives privileged and/or confidential documents of an adverse party on an unauthorized basis. These opinions indicate that a lawyer may make use of such documents and need not contact the opposing party or lawyer for instructions. These opinions do not address the situation where the opposing party's lawyer makes the disclosure. See, e.g. Michigan Bar Opinion CI-970 (1983):

An attorney who comes into possession of a document of the opposing party during litigation may use the document at trial provided it is admissible evidence and neither the attorney nor his client in any way procured the removal of the document from the possession of the opposing party.

An attorney's mere possession of the opposing party's internal and private memorandum does not require the attorney to withdraw from his representation of his client.

See also Maryland Bar Association ethics opinion 89-53 (1989), and Virginia State Bar Opinion 1076 (1988)

Inquiry:
Before becoming a lawyer, an individual worked as a claims adjuster for an insurance company. After becoming a lawyer, he went to work for a firm that concentrates in personal injury cases. The firm has several cases pending where the same insurance company insures the defendant. The claims manager for the insurance company has raised the issue that the lawyer should not represent clients against the insurance company because of confidential information the lawyer learned while in the employ of the insurance company as an adjuster.

To what extent do the Model Rules prohibit a lawyer from representing a current client against the lawyer's former (non-legal) employer?

Response:
There are several state bar opinions that state that a lawyer can represent clients against former legal employers so long as the lawyer was not involved in the matter while in the employ of the former employer. See, e.g. Indiana State Bar Opinion No. 3 of 1991 (1991).

A lawyer who was employed as in-house counsel for a company and managed employment discrimination suits as part of his duties may represent a new client in an employment discrimination case against his former employer. No sufficient involvement with a prior representation exists which would bar the current representation. 1001 ABA/BNA Law. Man. Prof. Conduct 3301.

One state bar opinion states that a lawyer may be barred from representing a current client against a former employer the lawyer worked for prior to becoming a lawyer. See, Connecticut Bar Association Opinion 89-7 (1989):

A lawyer who worked for the town government in a managerial position prior to his admission to the bar and spent the bulk of that time working with the town planning and zoning commission on a commercial development may not now represent the developer of that project as the developer's local counsel. Although Rule 1.11 is directed to the subsequent employment of a lawyer, the rationale behind it would prohibit a lawyer from representing an individual in a matter in which he participated while a non-lawyer public employee. 901 ABA/BNA Law. Man. Prof. Conduct 2062.

"Ask ETHICSearch" is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice.

The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.

The Ethics Department of the ABA Center for Professional Responsibility operates ETHICSearch, a research service for those needing information on ABA rules, standards and ethics opinions and additional authority at modest rates, discounted to ABA members.