State Bar of Arizona Ethics Opinions

88-08: Confidentiality; Diligence; Scope of Representation
10/1988

Necessity of lawyer withdrawing from representation of client who lawyer knows has obtained information by means of surreptitious tape recording. Attorney making use of such information.



FACTS

The inquiring attorney represents the wife in a domestic relations case. During his deposition of the husband, which the wife attended, it was revealed that the husband had received a substantial bonus from his employer in the form of a cashier's check. At one point, the opposing attorney requested a break in the deposition to confer with her client. They were left alone in the conference room.

Without the knowledge of the inquiring attorney, the wife had been tape-recording the deposition surreptitiously.  During the break, the wife left the tape-recorder running in the conference room.  She later said that she had covered the recorder with something which she mistakenly believed would prevent the private conversation from being recorded. The wife disclosed these circumstances to her attorney several hours after the conclusion of the deposition because, she reported, the recording of the private conversation contained the husband's attorney's advice to her client to dispose of or spend the bonus money so that it would not be available for division at the time of the decree of dissolution.

The inquiring attorney intentionally knows nothing more about the contents of his client's tape-recording. The wife wants to protect her interest in the bonus money. The inquiring attorney has not yet made any use of this information. He believes that, should he withdraw from the representation, it would be extraordinarily difficult for the wife to secure substitute counsel and, if she did, that she would simply disclose these same facts to her new attorney, thereby passing on the dilemma. He therefore has concluded that it would be inappropriate for him to withdraw. He also believes that his client may have violated a criminal statute by her surreptitious recording, and that the opposing attorney’s advice to her client may be unethical conduct depending on the specifics of the private conversation as recorded.

 

QUESTIONS

  1. Should the inquiring attorney withdraw from the representation notwithstanding the anticipated consequences?
  2. May the inquiring attorney, with ethical propriety, make any use of the information reported to him by his client from the recording of the private conversation, specifically

(a) May the attorney act to prevent disposition by the husband of the bonus mone

(b) Should he report the possible ethical violation by opposing counsel to the appropriate authorities of the State Bar?

(c) Should he apprise opposing counsel of the fact and circumstances of the recording?

3. What, if anything, should the inquiring attorney counsel his client to do concerning this incident?

 

ETHICAL RULES INVOLVED

ER 1.2. Scope of Representation

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued...

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(d) A lawyer shall not counsel a client to engage, or assist - a client, in conduct that the lawyer knows is criminal or fraudulent,...

(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

ER 1.3. Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

ER 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a) (2) [re disclosure of a material fact to a tribunal].

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

ER 1.16. Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

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(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can ·be accomplished without material adverse effect on the interest of the client, or if:

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(2) the client has used the lawyer's services to perpetrate a crime or fraud;

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(6) other good cause for withdrawal exists.

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ER 3.4. Fairness to Opposing Party and Counsel

A lawyer shall not:

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(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

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ER 4.1. Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

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(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by ER 1.6.

ER 4.4. Respect for Rights of Third Persons

In representing a client, a lawyer shall not use ... methods of obtaining evidence that violate the legal rights of [a third person].

ER 8.3. Reporting Professional Misconduct

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

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(c) This rule does not require disclosure of information otherwise protected by ER 1.6.

ER 8.4. Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

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(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

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OPINION

A relevant prior opinion of this committee, decided under the then-applicable Code of Professional Responsibility, was:

Opinion No. 80-23 (October 8, 1980) - Without his attorney's knowledge, a client made copies of the opposing counsel's file and revealed some of their contents to the attorney. Under DR 7-102(B)(1) of the Code -- as it read prior to its amendment by our Supreme Court effective January 12, 1981, excepting from the attorney's obligation to reveal the fraud to the affected person or tribunal the case where "the information is protected as a privileged communication" between client and attorney -- we ruled that the attorney was ethically obligated promptly to call upon his client to rectify the fraud and, if the client refused or was unable to do so, then the attorney must advise opposing counsel that his file had been copied. We stated, in part:

“The minimum that needs to be done is to advise opposing counsel that his file was copied. It is not sufficient for the attorney to withdraw or to tell his client to destroy the copies. The fraud is in the client’s having improperly and secretly copied a file of the other side whether or not his attorney knows the contents of the file. What may follow after such information is revealed to opposing counsel will be primarily up to him."

In addition, mention may be made of an inquiry by an Arizona attorney (Request No. 986) currently under consideration by this committee, but not yet finalized or released to the inquiring attorney and State Bar. That inquiry concerns the ethical propriety of an attorney or an investigator in a criminal case surreptitiously recording, by legal means, a witness interview. The proposed majority opinion, currently under consideration by the committee members, reviews several of our earlier opinions establishing ethical prohibitions against such recordings but permitting some limited exceptions, and clarifies a broader class of exceptions.

Questions of law generally are beyond this committee's jurisdiction. Statement of Jurisdictional Policies, Paragraph 6(a). Accordingly, we do not and need not decide whether the underlying client conduct in surreptitiously tape-recording the private conversation during the deposition adjournment violated any law. It is sufficient to note that, under A.R.S. 5 13-3005(2) (1978) (felony to knowingly record a conversation during which one is not present without the consent of a party to the conversation) and 18 U.S.C. § 2511(d) (1986) (unlawful to intercept an oral communication where one is neither a party to the communication nor has the prior consent of one of the parties), there are reasonable grounds to believe that the inquiring attorney's client could face criminal prosecution if her conduct were disclosed. Compare State v. Hauss, 142 Ariz. 159, 164, 688 p.2d 1051, 1056 (App. 1984) (tape-recording by police officers of conversation between suspect and his girlfriend in police interview room did not violate state or federal law because suspect had no reasonable expectation of privacy with regard to such conversation), with State v. Warner, 150 Ariz. 123, 127-128, 722 P.2d 291, 295-296 (1986) (approving California court's condemnation of police officers' surreptitious tape-recording of jail conversation between inmate awaiting trial and his attorney). The attorney, therefore, is justified in proceeding as though there were a realistic risk of criminal liability for his client, and this affects the subsequent analysis.

The fact that the person recording the conversation was not a party to it also distinguishes our proposed opinion on Request No. 986, and our earlier opinions discussed therein, which deal with whether an attorney, directly or indirectly, can surreptitiously record by legal means a conversation in which the recording party participates. As discussed below, whatever difficulties there may be in determining the ethical propriety of such recordings do not give us pause here.

Withdrawal. The attorney's withdrawal from the representation is not required under ER 1.16(a) (1) because, on the given facts, the representation itself will not result in violation of the Ethical Rules or other law. The client may have suggested, but apparently is not demanding, that her attorney engage in any such conduct. (See ER 1.16, Comment, “Mandatory Withdrawal”.)

The attorney might be able to withdraw from the representation under ER 1.16(b) (2) notwithstanding the anticipated materially adverse effect on the interests of his client from her inability to obtain substitute counsel. One might argue that the client used her lawyer's services to perpetrate a crime or fraud by using the deposition proceedings, including the adjourned portion, to obtain the surreptitious recording. The universal practice, when an attorney requests a break in a deposition to confer with his or her client, is that the conference will be a private one. When opposing counsel and her client were left alone in the conference room, they had every right to rely on an expectation of privacy fostered by this practice among attorneys. The client apparently took advantage of this, even if unintentionally, by her concealed tape-recorder.

The inquiring attorney, however, has concluded that his withdrawal would be inappropriate. His client will suffer from lack of counsel. Moreover, this situation is one of many in which withdrawal may solve a particular lawyer's dilemma but most likely will simply pass on the underlying problem to another attorney, with the problem being perhaps more disguised by the client. In other words, withdrawal often really solves nothing.

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1. “Fraud ... denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information." 17A A.R.S. Sup. Ct. Rules, Rule 42, Rules of Professional Conduct, Preamble-Terminology. The client's conduct might well come under this definition, but we need not decide this point for present purposes.

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Permissive withdrawal is a matter committed to the discretion of the attorney. The language of ER 1.16(b) is “may” and the Scope portion of the Preamble to the Rules specifies that such language defines areas under the Rules "in which the lawyer has professional discretion.”2 17A A.R.S. Sup. Ct. Rules, Rule 42, Rules of Professional Conduct, Preamble-Scope. For all of these reasons, the committee will not second-guess the attorney's decision not to withdraw in this case.3

Use of the information. The harder questions involve what use, if any, the inquiring attorney may make of the information on the tape as reported by his client. We resolve these, basically, on the basis of the realistic potential for criminal liability faced by his client and the confidentiality requirements of ER 1.6.

Quite clearly, an attorney may not properly record a private conversation solely between opposing counsel and that counsel's client. Such conduct would involve "dishonesty, fraud, deceit or misrepresentation' constituting professional misconduct under ER 8.4(c). It might also be a method of obtaining evidence which violates the legal rights of a third person within the prohibition of ER 4.4. What a lawyer cannot do in this regard personally he also cannot achieve through the acts of another. ER 8.4(a). Nor can an attorney counsel a client to engage, or assist a client, in such conduct. ER 1.2(d). This clear conclusion distinguishes our proposed opinion on Request No. 986, currently under consideration, and the previous opinions involving similar questions discussed therein.

On the other hand, the requirement of ER 1.3 that an attorney represent a client “with reasonable diligence” normally entitles an attorney to “take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor". ER 1.3, Comment. The "zeal in advocacy" this Comment endorses, however, is tempered by the views that “a lawyer is not bound to press for every advantage that might be realized for a client", and that “[a] lawyer has professional discretion in determining the means by which a matter should be pursued.” Id.

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2. We note, however, that the Scope language adopted by the Supreme Court of Arizona as part of its Rule 42 omits the sentence from the A.B.A. Model Roles which reads: "No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion." A.B.A. Model Rules of Professional Conduct, Preamble-Scope. This committee, of course, does not exercise any disciplinary function, Statement of Jurisdictional Policies, Paragraph 10, and we intimate no opinion as to any disciplinary consequences beyond the statement in said Paragraph 10. 

3. See, also, Statement of Jurisdictional Policies, paragraph 6(d) (committee will not render opinion "[o]n questions involving solely the attorney's exercise of judgment or discretion").

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In the course of the deposition proper, the inquiring attorney first learned of the existence of the bonus check. This alone might well have led him to take some action to preserve his client's interest in this asset, whether through an arrangement with opposing counsel or an appropriate court order, if necessary. These avenues are still open to the attorney despite the taint of the tape-recording. Nothing in the Ethical Rules prevents him from aggressively seeking to preserve this asset. He may not, however, rely on the client's tape-recording in doing so. This is true for two reasons:

First, we believe that such reliance would come too close to assisting the client in the underlying improper conduct. See ER 1.2(d). There is no suggestion here of any complicity whatsoever by the attorney in the circumstances that led to the recording. Indeed, the attorney's forthright inquiry belies any such notion. Use of the tape in any manner, however, such as citing it as evidence of the need for a specific court order to prevent disposition of the funds, would constitute subsequent ratification of the client's conduct and would permit the client inappropriately to benefit from her act in taking improper advantage of her attorney's services.

Secondly, such use of the tape would necessitate the disclosure of its existence and the manner in which it was made. This could expose the client to possible criminal liability and, we believe, is prohibited by the confidentiality requirements of ER 1.6. The client's disclosure to her attorney of her actions is “information relating to representation of a client” under ER 1.6(a) and does not come within any of the enumerated exceptions to his duty of confidentiality. Thus, since the attorney cannot reveal this information, he also cannot make any use of the tape.

For similar reasons, the attorney also cannot report the possible ethical violation by opposing counsel, nor apprise opposing counsel of the fact and circumstances of the recording. First, the reporting requirement of ER 8.3(a) is predicated on a lawyer's "knowledge" of misconduct by another lawyer that raises a "substantial" question about the other lawyer's “honesty, trustworthiness or fitness as a lawyer in other respects." Such knowledge means “actual knowledge of the fact in question", although this may be inferred from circumstances. 17A A.R.S. Sup. Ct. Rules, Rule 42, Rules of Professional Conduct, Preamble-Terminology. "Substantial" denotes "a material matter of clear and weighty importance.” Id.

The alleged conduct by opposing counsel might constitute a violation of ER 1.2(d), 3.4(c)4, 8.4, or some other provision of the Rules. We intimate no opinion as to this, however. It generally is beyond this committee's jurisdiction to render opinions in regard to the questioned ethical propriety of an attorney's conduct upon the request of a third Person. Statement of Jurisdictional Policies, Paragraph 4 (as amended April 28, 1988). More importantly for present purposes, we do not know the facts and are not in a position to render such an opinion even if it were within our jurisdiction. The inquiring attorney is in no better position in this regard.

We believe that, in fulfilling his obligations under ER 8.3, the inquiring attorney, at a minimum, would be required to listen to the tape. Although “substantial” as used in ER 8.3 "refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware" (ER 8.3, Comment), we believe that, in this case, the attorney could not rely simply on his client's possibly self-serving description and interpretation of what she heard. In raising a claim of professional misconduct, the attorney would have to make his own professional judgment after listening to the tape. But this he may not do, for it would implicate him further in his client's improper and possibly illegal conduct. Just because his client already has eavesdropped improperly on a private conversation does not mean that the attorney is now free, in effect, to do the same thing. Upon learning from his client of the tape-recording, the inquiring attorney immediately stated to her that he wanted to know no more about it. We confirm this judgment.

Moreover, we fail to see how the inquiring attorney could report the possibility of an ethical violation without disclosing the existence of the tape-recording and the circumstances under which his client procured it. As previously discussed, such disclosure is prohibited by ER 1.6. Similarly, under other circumstances, ER 4.1(b) might require that the inquiring attorney inform opposing counsel that the private conversation with her client had been tape-recorded. We need not decide, however, the perplexing issue of whether the unknown contents of the tape could be such that its existence would constitute a “material fact” the disclosure of which would be necessary to "avoid assisting a criminal or fraudulent act by a client.” ER 4.1(b). On its face, ER 4.1(b) states that disclosure is not required when prohibited by ER 1.6, as we have already determined.

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4. See A.R.S. § 25-315 (1987 P.P.) (preliminary injunction shall be issued in all actions for dissolution of marriage).

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Our Opinion No. 80-23 does not require a contrary conclusion. There, the inquiring attorney's client managed to copy opposing counsel's file and then reported some of the contents of the file to his own attorney. We ruled that the inquiring attorney was ethically obligated, at a minimum, to advise opposing counsel that his file had been copied. But, reliance was placed on DR 7-102(B) (1) of the Code of Professional Responsibility as it was then in force in Arizona. This required an attorney, learning that his client had perpetrated a fraud on another person, to reveal the fraud to the affected person if the client could not or would not rectify the fraud. The Arizona version of DR 7-102(B), prior to January 12, 1981, omitted the explicit exception contained in the A.B.A. Model Code negating the lawyer's duty of disclosure "when the information is protected as a privileged communication." A.B.A. Model Code of Professional Responsibility, DR 7-102(B) (1) (as amended through February, 1979). Thus, Opinion No. 80-23 was rendered under an ethical provision which made no exception for confidential information. Under the current Rules, however, the confidential information from the client may not be disclosed.

Communication with the client. Finally, we address elements of the communication which the inquiring attorney should make to his client. ER 1.2(a) mandates that a lawyer consult with his client and, subject to stated exceptions, "shall abide by a client's decisions concerning the objectives of representation." One such exception arises "when a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law," the lawyer being obligated, in such a case, to "consult with the client regarding the relevant limitations on the lawyer's conduct." ER 1.2(e). This may be such a case.

The client may expect that her lawyer will use the information on the tape, and perhaps the tape itself, to her specific advantage. More generally, she may believe that the tape could be used as leverage in the litigation. Thus, we believe that the attorney should explain to his client the relevant limitations on his conduct in accordance with the holdings in this opinion. At the same time, the inquiring attorney should also counsel his client as to the impropriety and possible illegality of her conduct, and attempt to assure that it will not be repeated thereafter in a similar situation.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.

© State Bar of Arizona 1988



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