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John Gaal's Ethics Corner
Q: I recently received an electronic version of a document from my opponent. It is my understanding that there is a way to “look behind” the visible document sent to me, to discover earlier versions of the document that may have been drafted. This “look-behind” may also reveal who else was sent the document for review, as well as any comments they may have made regarding the document. It seems to me that since my opponent chose to give me the document in this electronic form, it is okay for me to try to discover whatever other information it contains. Is that correct?
A: The New York State Bar Association Committee on Professional Ethics recently addressed this very issue, and concluded that the answer is no, it is not permissible to do so. Formal Opinion 749(2002) concludes that using technology to examine electronically received communications from an adversary (or electronically “bugging” and tracing communications sent to an adversary to see where else they are sent) is a violation of the Code of Professional Responsibility because it may lead to discovery of confidences and secrets of your adversary's client. This is believed to be the first, and only, ethics opinion on this subject.
The Committee's decision focuses on DR 4-101. This Disciplinary Rule requires the protection of client confidences and secrets and, according to the Committee, prohibits an attorney from trying to exploit access to the confidences and secrets of an opponent. The Committee found support for this conclusion in a number of sources that previously have recognized that it is improper for an attorney to attempt to invade the attorney-client confidentiality of an adversary. e.g., Dubois v. Gradco Sys., Inc., 136 F.R.D. 341 (D. Conn. 1991) (counsel must not seek to solicit privileged attorney-client information from former corporate employees even though ex parte contact with such employees is otherwise generally permissible); ABA Formal Opinion 92-368 (improper to take advantage of inadvertently or improperly disclosed confidences and secrets of an adversary); NYSBA Formal Opinion 700 (improper to exploit willingness of another to disclose an opponent's confidential communications). The Committee also concludes that trying to look behind an electronic communication would violate both DR 1-102(A)(4), which prohibits an attorney from engaging in deceitful, dishonest or fraudulent conduct, and DR 1-102(A)(5), which prohibits conduct prejudicial to the administration of justice. The Committee notes that an attorney's obligation to zealously represent his or her client could not overcome the sacrosanct nature of privileged communications.
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