Informal Opinion Number: 2019-01

Adoption Date: 2019

Rules: 4-1.2; 4-1.4; 4-1.6; 4-1.8; 4-4.4; 4-3.4; 4-8.4
Client-Lawyer Relationship
Transactions with Persons Other than Clients
Advocate
Subject: Client Misconduct; Fairness to Opposing Party and Counsel; Respect for Rights of Third Persons
Summary: client inappropriately or wrongfully obtaining email communications of opposing party

Reference Note: Rule 4-4.4, Respect for Rights of Third Persons, was amended effective December 1, 2021 as to Comments [2] and [3]. This opinion predates those amendments.

Question: Attorney’s Client in a pending dissolution sent Attorney electronic copies of email correspondence between opposing party and various third persons, including opposing party’s counsel. Client obtained access to the information through opposing party’s email account, for which Client possesses login information. What is Attorney required to do with the information?

Answer: Whether Client inappropriately or wrongfully obtained opposing party’s communications with others is a question of law and fact outside the scope of an informal ethics opinion. If Attorney knows or should know the information was inadvertently sent, Rule 4-4.4(b) requires Attorney to promptly notify the sender. If the information was inappropriately or wrongfully obtained, use of the information by Attorney may violate Rule 4-4.4(a), Respect for Rights of Third Persons, and/or Rule 4-8.4(c), which forbids engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See also Rule 4-4.4, Comment [1]. Attorney should review applicable law as to Attorney’s legal duties regarding inappropriately or wrongfully obtained information, including whether to notify the sender to allow protective action to be taken, and whether to return, delete, destroy or otherwise make inaccessible any inappropriately or wrongfully obtained information. See Rule 4-1.2, Comment [2]. If Attorney has an ethical or legal duty to disclose Attorney’s possession of the information, failure to do so could violate Rule 4-3.4, Fairness to Opposing Party and Counsel. But see Rules 4-1.6 and 4-1.8(b). Attorney should consult with the client about Attorney’s professional obligations related to the information and aspects of the matter that are in Attorney’s professional judgment per applicable law and court rules. See Rule 4-4.4, Comment [3]; see also Rules 4-1.2 and 4-1.4.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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