Ethics Opinion

Opinion No. 94-6

June 1994

Summary: It is not a violation of the Disciplinary Rules, in the circumstances of this inquiry, for a government lawyer to possess and use corporate documents, some of which are covered by the attorney-client privilege, that were copied by an employee of the corporation and later sent to a governmental agency without any participation by any state or federal employee.

Facts: A corporate manager (the "Informant") took or copied, without corporate authorization, corporate documents, including some that appear to be covered by the attorney-client privilege. After ceasing to be employed by the corporation, the Informant on his own initiative provided copies of the documents to a regulatory body ("Board"). After conducting an investigation, the Board notified the corporation that it was in violation of a governing regulation and directed the corporation to take certain actions, including providing the Board with additional information. The Board also provided copies of the documents received from the Informant to a government lawyer outside the agency ("GL"). GL has power to enforce the regulation. After receiving the additional requested information, GL and the Board decided that the corporation's violations of the regulation were significant and justified enforcement action. While the information provided by the Informant is not now necessary to establish the corporation's liability for violating the regulation, were it not for that information it is unlikely that the corporation's conduct would have been scrutinized by the Board and GL. The contemplated prosecution is civil, not criminal. GL inquires about the permissibility of using the information and documents in the civil proceeding.

Discussion: The committee has considered whether GL committed an ethical violation in accepting and examining documents that were taken or copied by the whistleblowing Informant from the corporation. GL states that no state or federal employee was involved in the acquisition of the documents by the Informant or in the decision to turn copies over to the Board, and we assume, for purposes of this inquiry, that the Board violated no law in receiving them. We also assume that some of the documents are protected by the attorney-client privilege and some are not.
After the Board received copies of the documents, it conducted an inspection, found a violation of the relevant regulation, and directed the corporation to take certain action to comply with the regulation. It then provided the documents to GL. Therefore by the time that GL received the copied documents, they had already been examined by various personnel of the Board and been used as the basis for its action.
There is some difference of opinion among courts and ethics committees about the obligation of a lawyer to return and not use confidential documents that have been inadvertently sent by a party or its lawyer. Compare Formal Opinion 92-368, ABA Committee on Ethics and Professional Responsibility (lawyer should avoid reviewing the documents and should return them) with Aerojet-General Corp. v. Transport Indemnity Insurance, 18 Cal. App. 4th 996, 22 Cal. Rptr. 2d 862 (Cal. Ct. App. 1993) (lawyer is obligated to use confidential information received inadvertently and without wrongdoing in circumstances of the case) and NLRB v. Monfort, Inc. 9 ABA/BNA Manual 287 (Oct. 6, 1993) (lawyer need not return NLRB memorandum inadvertently mailed to him).
The only case to discuss this issue in Massachusetts is the opinion of Magistrate Collings in International Digital Systems Corp. v. Digital Equipment Corp., 120 F.R.D. 445 (D. Mass. 1988), which applied the rule that inadvertent disclosure operates to waive the attorney-client privilege as to the disclosed documents because the purpose of the privilege to protect confidentiality has been lost.
While the documents in this case were not disclosed inadvertently by the corporation, the result is the same insofar as GL is concerned. Once agency personnel read the documents, the information was no longer confidentially held within the corporation. So long as there was no legal restriction on the ability of the agency to receive or to use the documents or information contained therein--a substantive law issue that we are not permitted to address--we see no reason to conclude that GL should be forbidden to use the documents when the agency is not.
ABA Formal Opinion 92-368, in advising the lawyer not to examine the documents that he received by mistake from the other side, focused on the importance of confidentiality and the lack of any important principle supporting an alternative result when a lawyer receives confidential materials inadvertently from another "party." Here, however, there are important countervailing principles. The Informant, who was the corporation's own (former) employee, was apparently seeking to prevent wrongdoing by the corporation, and sent the materials to the Board charged with enforcement. Moreover, the Board has already used the documents to initiate an investigation. There are important public interests protected by the regulatory and law enforcement agencies involved, and government lawyers are under a duty to investigate thoroughly matters brought to their attention and to prosecute, or otherwise redress, violations of law. Moreover, there had already been such wide dispersion and, on our assumption, lawful use of the documents by lay personnel of the Board that it would seem inappropriate and, indeed, quite odd to forbid GL from examining or using the documents on the basis of their confidentiality. Accordingly, there is, in the committee's view, no ethical obligation imposed on GL to refrain from examining the materials in question or to return them to the corporation absent a court order to that effect.
GL's inquiry indicates that GL is willing to inform the corporation about GL's possession of these documents when GL proceeds with the civil action. Given GL's intention, we see no need to discuss whether that is required by the Disciplinary Rules. The procedure followed by GL will enable the corporation to make whatever motions it may think appropriate with respect to return or use of the documents.
This inquiry relates to a situation where the disclosure was made in the first instance to non-lawyer personnel of the Board. We have not addressed the issue in the context of attempted initial disclosure to a Board lawyer or to GL.
On the assumptions outlined above, we advise that the Disciplinary Rules do not prevent GL from possessing and examining the documents, whether privileged or not. We assume that GL will of course abide by any rulings the court may make concerning possession and use of the documents. Whether there are common law, statutory, or constitutional rules that are relevant to GL's receipt and use of the documents or to the Board's receipt and use of the documents are matters of substantive law that are beyond our jurisdiction.