What would be the consequences if I illegally intercepted or improperly obtained copies of a confidential memo of opposing counsel that contained attorney-client and work product information? Can I use this information?
Samuel C. Stretton.
The question as posed is shocking and presumably is just a hypothetical and presumably no one has done such a thing. Lawyers are professionals and integrity and honesty are the essence of being a professional. Rule of Professional Conduct 8.4(c) prohibits a lawyer from being involved in anything involving dishonesty, deceit, fraud or misrepresentation. Rule 8.4(d) precludes a lawyer from doing anything that would obstruct the administration of justice. These are very serious potential violations and could well result in suspension or disbarment. Further, there would be a mandatory reporting requirement for any lawyer who surreptitiously or illegally was obtaining confidential information from their opponent’s attorney or their opponent. Rule 8.3(a) would require mandatory reporting about the conduct since it goes to a lawyer’s honesty, fitness or trustworthiness. The judicial officer involved in the case would also have a mandatory duty to report such information. Under the Code of Judicial Conduct, Rule 2.15, a judge should report when a lawyer has violated the rule that raises a substantial question regarding the lawyer’s honesty, trustworthiness or fitness. Then the judge has to immediately inform the appropriate authorities. Further, under Rule 2.15(d), a judge who receives information indicating a substantial likelihood a lawyer has committed a violation of the Rules of Professional Conduct has to take the appropriate action.
