By David Majchrzak and Edward McIntyre
19.3.10 Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion 531 (July 24, 2019)
Issue:
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?
Analysis:
When a lawyer is offered access, by a witness who is an unrepresented former employee of the opposing party, to potential documentary evidence and is informed that it will show the adverse party’s failure to comply with discovery obligations, the lawyer is faced with competing public policy considerations and difficult ethical and legal issues. The first question the lawyer must address is whether witness is lawfully in possession of the data. To do so, the lawyer must determine not only whether possession of the data is proper, but also whether the lawyer may lawfully and ethically review it. If the lawyer concludes that the witness’s acquisition or possession of the evidence was a crime and the lawyer has taken possession of it, then the 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. The lawyer is prohibited from accessing the content of privileged communications between the adverse party and opposing counsel.
Because the witness is an unrepresented person and not a current employee of the adverse party, the lawyer is not prohibited from communicating with the witness, but may not state or imply that the lawyer is disinterested. The lawyer also may not seek to obtain privileged or other confidential information from the witness that the lawyer knows or reasonably should know the witness is not entitled to reveal without violating a duty to another, or which the lawyer is not otherwise entitled to receive.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.