Opinion 89-13
(May 1989)

You have asked the Committee for an opinion concerning your obligation with respect to the disposition of photocopies of financial records provided to you by your client in a divorce proceeding to support her position that she and her husband are the true owners of stock in a business corporation titled in the name of the parties1 children, where she obtained the documents by visiting the corporate offices without the consent or permission of any member of the Board of Directors or employee of the corporation.

Specifically, you have addressed the following questions to the Committee:

1. Is this conduct on the part of the client unlawful?

2. Can the documents be introduced into evidence in the divorce action?

3. If the conduct was unlawful and the documents cannot be introduced, should the documents be destroyed?

4. Is there any obligation to disclose to the husband what she has done if the copies of the records that she has removed are destroyed?

Your first question concerning the lawfulness of your client's conduct is beyond the charge of this Committee and therefore, only questions 2 - 4 will be addressed herein:

2. The attempted proffer of this evidence does not violate the Rules of Professional Conduct, but pursuant to Rule 1.1, obligating you to provide competent representation, you may be required to advise your client of the possible collateral consequences thereof, e.g., that you or she may be asked by the tribunal or opposing counsel to reveal how this evidence was obtained.

3. Your obligation of competence and diligence under Rules 1.1 and 1.3 respectively would prohibit your destruction of evidence advantageous to your client's case without her permission. Also, Rule 3.4(a) would prohibit the destruction of the evidence if such destruction is unlawful, which is a determination the Committee cannot make for you.

4. In the absence of your client's authorization, your obligation of confidentiality pursuant to Rule 1.6 would generally prohibit your revealing to the husband how the documents were obtained. However, should you determine that her conduct was criminal, revealing such information may be authorized but not required pursuant to Rule l.6(c)(2).

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.