Lawyers cannot use illegal means to gain confidential information of an opposing party.

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.

Even of more concern is how the confidential document was obtained. If this document was sent by wire, such as email or other forms of transmission, that may well be a wiretap violation, which is a felony under Pennsylvania Rules of Professional Conduct.

The Rules of Professional Conduct, many of which were written before the modern world of electronics, do not have a specific rule about getting someone else's confidential information electronically by misconduct. But under Rule 4.4 of the Rules of Professional Conduct titled "Respect for Rights of Third Persons, Rule 4.4(a) states as follows: "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 would violate the legal rights of such a person."

The rule is clear that lawyers cannot use illegal means to gain confidential information of an opposing party. Comment 1 notes as follows: "It is impractical to catalog all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusion into privileged relationships, such as the client/lawyer relationship."

Rule of Professional Conduct 4.4(b) talks about when a lawyer receives a document electronically.

"A lawyer who receives a document, including electronically stored information, relating to the representation of the lawyer's client and knows or reasonably should know that the document, including electronically stored information, was inadvertently sent shall promptly notify the sender."

This rule is somewhat disappointing. It would have been hoped it would have gone further beyond not only to notify the sender, but also a requirement to destroy the document and not reference it. Unfortunately, the rule does not state that. The Comment 2 notes as follows: "Whether the lawyer is required to take additional steps, since he returning the document, including electronically stored information, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document, including electronically stored information has been waived."

Comment 2 also notes as follows: "Similarly, this rule does not address the legal duties of lawyer who receives a document, including electronically stored information, that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person."

That comment goes directly to the issue at hand. Further, wiretap rules, where there is a violation, at least in Pennsylvania, cover those who obtain any illegal wiretap information and those who read it and continue to use it knowing it was illegally obtained. Wiretap information in Pennsylvania doesn't include just listening to conversation, but includes electronic eavesdropping and things of that nature.

More importantly, if this type of illegal conduct is occurring, what is happening to the practice of law? Is the desire to win or desire to be paid big money by wealthy clients changing the basic moral compass of intelligent and good lawyers? The bottom line is that obtaining illegally confidential information is wrong. It's unethical. It is dishonest. To continue to use it just perpetuates the wrongness and implicates all those who are doing so.

That is not what a lawyer is supposed to stand for. There is an adversarial system, but it can be corrupted by illegal conduct. No matter how big or powerful a law firm is, this conduct is totally unacceptable. If it persists, the lawyers who are abusing this and taking advantage of stolen or illegally obtained confidential information, could well lose their law license, presumably with a long suspension or disbarment. Although this writer never likes to suggest a lawyer should be disbarred, this kind of conduct clearly suggests its warranted because it goes against everything a lawyer stands for.

Hopefully, the question is a hypothetical one and not an after-the-fact sense of guilt. But this is very serious misconduct and can't be tolerated and should not be tolerated. If it's been done and it's known then immediate reporting should be done through the various disciplinary authorities, both Pennsylvania Office of Disciplinary Counsel and the Federal Court Disciplinary Committee if it involves a federal case. The judges also, as noted, have the reporting duty and can be disciplined for not doing so  Lawyers must set an example and must be above reproach. There is nothing wrong with lawyers in adversarial situations pushing the envelope on the issues and litigation. But there is everything wrong when dishonesty is utilized and improper advantage is taken. When that occurs, the lawyer forfeits their right to have their privileged position as a member of the bar.

There is a duty to train the younger generation of lawyers in a professional way.

I am at a hearing and a newly minted lawyer representing the other side is making a number of mistakes. Can I take full advantage of those mistakes or should I do something to educate the younger lawyer?

The question is interesting, particularly since it raises two conflicting duties. One duty is obviously to represent one's client to the fullest. In a hearing one can take advantage of mistakes made by one's opponent or even their inexperience. The other duty, which is long-standing, is to assist the next generation of lawyers as they start to learn their trade in the field of battle.

The best answer is that one would do nothing to hurt their client during the litigation. But one should not seek to embarrass a new or inexperienced lawyer. One does not demean a new lawyer. If mistakes are made or evidence isn't presented, then one argues what was lacking to try to gain a decision in favor of their respective client.

Having said that, once the hearing is done, then a professional lawyer will talk to their opponent and debrief them. This writer remembers years ago after his first deposition as a young lawyer on a medical malpractice case, that the opposing counsel called him and invited him to lunch the next day. That opposing counsel then—in a very friendly but professional way—taught this writer how to do a deposition and went over the mistakes that were made. It was extremely useful and helpful to this writer. It also installed in this writer the concept of professionalism and the need to always train the next generation of lawyers.

All lawyers have a duty in this wonderful legal profession as time marches on to ensure that the newer lawyers learn the concept of professionalism and learn the basic trade skills. That is done by being taught by older lawyers and mentors. Obviously, the firm employing the young lawyer has a duty to mentor. But opposing counsel and other lawyers and judges who come across these young lawyers as they start to practice and to try cases also have a duty to assist and educate the younger generation.

Obviously, no lawyer should ever demean or make fun of their opponent or attempt to embarrass or humiliate their opponent before their respective clients. Judges should not do that either. Judges should always call lawyers to sidebar if they are doing something that's wrong or obviously stupid.

The sense of professionalism of a lawyer should result in talking and speaking with younger lawyers in private and correcting them, helping them or giving them guidance. Obviously, some lawyers aren't going to be receptive to it, but at least one tries; but most are. This helps train the next generation and also helps to ensure that they understand what it means to be a professional.

Finally, if the concept of professionalism means nothing and one disagrees with this approach, just keep in mind that younger lawyers ultimately become older lawyers. They will remember those who embarrassed and ridiculed them or didn't provide help. For no other reason, the lawyer ought to try to assist. Someday the table may be turned.

But, presumably, that is not going to be the rationale. There is a duty to train the younger generation of lawyers in a professional way. And there is no better way of doing it than debriefing a young lawyer after a hearing or trial so they won't make the same mistakes in the future.