Some ethics violations happen because a lawyer carefully analyzes a debatable situation and draws a good-faith, but incorrect, conclusion. And then there are the lawyers who leave me wondering — what were they thinking? Let’s say your divorce client hacks into his future former wife’s e-mail account and hands you her payroll information and the direct examination questions that her lawyer has e-mailed her in preparation for trial. Raise your hand if you think you can use that evidence.
A lawyer in Missouri got his ticket to practice pulled for at least six months for trying to do just that. Oh yeah — he also threatened opposing counsel if she discussed the matter.
Client accessed e-mail “without permission”
The lawyer’s client, the divorcing husband, accessed the wife’s e-mail “on multiple occasions” without her permission. After he got current payroll records and a list of direct examination questions that opposing counsel had prepared for the wife, he turned them over to his lawyer.
On the second day of trial, the lawyer handed the wife’s counsel a stack of exhibits that included the direct examination questions that she had prepared for her client. Before then, the wife and her counsel were not aware that the wife’s e-mail had been breached.
The wife’s counsel requested a hearing on the record, at which the husband admitted his conduct and that he provided the ill-gotten documents to his lawyer. The lawyer admitted that he received the documents, knew they were “verboten” and that he failed to disclose his receipt of the information to opposing counsel.
“Rumor has it…”
Three days after the hearing, the husband’s lawyer sent the following e-mail to opposing counsel:
Rumor has it that you are quite the gossip regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel.
The Missouri Office of Chief Disciplinary Counsel charged the lawyer with violating the state’s versions of Model Rule 4.4(a) (using methods of obtaining evidence in violation of the rights of a third person); Rule 8.4(d) (conduct prejudicial to the administration of justice); and Rule 3.4(a) (unlawfully concealing a document having evidentiary value).
The hearing panel found that in addition to possessing the direct examination questions, the lawyer had used the improperly obtained payroll information during a pre-trial settlement conference.
The devil made me do it?
In the state supreme court, the lawyer argued that he did not use improper means to obtain the evidence because it was his client, the husband, who did so, not the lawyer himself. The court rejected that argument.
The comment to Rule 4.4 says that “when a lawyer knows that he or she has improperly received information, [the rule] ‘requires the lawyer to promptly notify the sender in order to permit that person to take protective measures.'” The lawyer acknowledged that he knew the source of the information and that his possession of the documents was “verboten.” Thus, the court held, the lawyer was required to promptly disclose his receipt of the information. The violation of Rule 3.4 was proven by the same conduct.
The threatening e-mail, implying that opposing counsel “would suffer professional retribution if she further discussed the issue” is conduct that prejudices the administration of justice, the court said.
A divided supreme court imposed an indefinite suspension with no leave to apply for reinstatement for six months. Two of the seven justices dissented and would have barred reinstatement for 12 months, which is the sentence the hearing panel had recommended. The supreme court did not explain its downward departure from the hearing panel’s stiffer recommended penalty. The dissents pointed out that the lawyer had already been disciplined five times in the past 25 years, including a previous six-month suspension.
Take-home lesson: Know your state’s version of Model Rule 4.4 so that you understand your obligations when receiving evidence from outside sources. You should also be aware that other authority — namely civil or criminal procedure rules and case law — are also potentially applicable. Hope you passed the test.