Opinion 2008-2
(March 2008)

The inquirer has a client whose ex-wife has sued the client regarding an estate matter. The client has revealed to the inquirer that he, the client, has access to the ex-wife's e-mail through the computer in his home which she used while they were married. She never changed her password until recently. The client has told the inquirer that he has e-mails between his ex-wife and her attorney that would devastate her case against the client. The inquirer does not know anything further because he advised his client that the e-mails were privileged communications and that he, the inquirer did not want to know anything further. The client wants to reveal the e-mails to the Orphans Court. The inquirer asks if he is correct that these communications should not be revealed and cannot be subpoenaed.

The issues of whether the communications are, in fact, privileged and are or are not accessible via subpoena are mixed questions of fact and law which are beyond the purview of the Committee (however see discussion of the privilege below). However, the Committee understands this inquiry to be whether the inquirer is constrained by the Pennsylvania Rules of Professional Conduct (the "Rules") from (a) reviewing these e-mails and/or (b) making use of them in the litigation between the inquirer’s client and the client’s ex-wife.

Rule 4.4 Respect for Rights of Third Persons is of paramount concern. It provides that:

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (emphasis supplied)

(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or should reasonably know that the document was inadvertently sent shall promptly notify the sender.

The Committee has insufficient information about the manner in which the client gained access to the subject e-mails to state with any certainty whether Rule 4.4 (a) is implicated. However, there is statutory authority in the Commonwealth that renders “unauthorized” access to computer-derived information a third-degree felony under certain circumstances relating to "[U]nlawful use of computer…" and "Computer theft", respectively. The Committee recommends, therefore, in accord with the requirements of Rule 1.1, Competence which provides in part that, "competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation" and Rule 1.3, Diligence which provides that, "A lawyer shall act with reasonable diligence and promptness in representing a client" that the inquirer exercise considerable caution by familiarizing himself with any applicable criminal or civil law and then discussing at length with the client the question of how and to what extent he became privy to the subject e-mails before deciding whether or how to proceed. In the event potential civil or criminal liabilities cannot be ruled out under these circumstances and the client ignores the inquirer’s advice against using the e-mails and insists that they be used in providing representation to the client, the inquirer should seriously consider withdrawing from the representation under one or both of the following provisions of Rule 1.16, Declining or Terminating Representation:

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: …
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent…
(4) the client insists upon taking action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

The Committee cautions that such withdrawal must nevertheless be in a manner that does not violate any applicable duty of confidentiality to the client under Rule 1.6 (a).

On the other hand, if, after vetting these questions with the client, the inquirer is satisfied that there is no risk of civil and/or criminal liability to the client, it is the Committee's opinion that the inquirer cannot rest on the conclusion expressed in the inquiry that the e-mails are "privileged communications" and merely ignore them. There are several reasons for this.

First, the mere fact that the e-mail communications in question are between the client's ex-wife and her attorney does not render them privileged, per se. The scope of the privilege is statutory in nature; see, 42 Pa.C.S. § 5928, as well as case law interpreting the statute, and extends, inter alia, only to those communications that are "for the purpose of securing primarily either an opinion of law or legal services…." Accordingly, the Committee feels that the inquirer may not be able to make any judgments on the privilege issue without subjecting the e-mails to some kind of review.

The Committee appreciates the inquirer's concern about coming into possession of e-mails between the client's ex-wife and her lawyer that may turn out to have been inadvertently sent. In the event that the inquirer should determine that the e-mails came into the client's possession inadvertently the inquirer’s ethical duties are limited to notifying the sender as provided by Rule 4.4 (b). As previously stated, the question of whether and to what extent use can thereafter be made of those e-mails will be a matter of substantive and procedural law. However, should use of the e-mail be a possibility several other ethical issues must be examined.

Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer specifically Rule 1.2(a), requires the inquirer to abide by the client's decisions concerning the objective of the representation and obligates the inquirer to consult with the client regarding the means by which those objectives are to be pursued. In the present case, the client clearly wishes the inquirer to use the subject e-mails. Because the inquiry does not make the nature of the litigation between the client and his ex-wife entirely clear, the Committee cannot guess at the objectives of the representation. The Committee notes that the inquirer and the client, if they have not done so already, should clarify those objectives and at least discuss how and whether the e-mails can or should be used. This is entirely consistent with the inquirer's duty under Rule 1.4 Communication specifically, Rule 1.4(a)(2) which obligates a lawyer to "reasonably consult with the client about the means by which the client’s objectives are to be accomplished." The Committee finds that the inquirer cannot rule out — at least without being aware of their content — the possibility that the content of the e-mails may be such as to impose an affirmative duty on the inquirer's part to employ them in pursuing the client's claims and defenses if they will significantly advance the client’s interests.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.