I’ve mentioned in the past the fact that Tennessee has a version of RPC 4.4(b) that directly addresses, and provides what I happen to think is the correct outcome, for what a lawyer is supposed to do about the receipt of someone else’s confidential information either inadvertently or via someone who isn’t authorized to have it in the first place. Our RPC 4.4(b) goes further than the ABA Model Rule in two respects on this front in that: (1) it doesn’t just require notice as to inadvertently received information but makes clear that the lawyer has to either abide by any instructions as to what to do with the information or has to refrain from doing anything further with it until a court ruling can be obtained; and (2) we apply the same standard to information received unauthorizedly, e.g. a purloined document. (Of course, I’ve also mentioned … repeatedly I admit … that the ABA Model Rules ought to be construed via Model Rule 1.15 to fill the gap on that second point, but … leading horses… and drinking water… and all that.
Earlier this month the State Bar of Texas Professional Ethics Committee issued Opinion 664 which “addresses” the following two questions:
1. Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they are in possession of confidential information taken from the opposing party without the opposing party’s knowledge or consent?
2. Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they have inadvertently received confidential information of the opposing party?
In a relatively short opinion that discusses almost exclusively the first question, the Texas Committee ultimately says, “hey look, we don’t have a rule on any of this… so you are kind of on your own.” That’s not really a quote from the opinion, of course. The real quote from the opinion is longer but the gist is pretty much exactly the same as my fake quote.
The opinion then goes on to hold out the possibility that if you have this fact scenario plus something more than maybe one or more other rules could be violated — like Texas’s equivalents of Model Rule 1.2(d) or or Model Rule 3.3(a) or Model Rule 4.1 or Model Rule 8.4(d). Quoting the opinion this time for real:
It is possible that under some circumstances the failure to provide notice to opposing counsel, or take other action upon receipt of an opponent’s confidential information, might violate one or more of the Texas Disciplinary Rules requiring lawyers to be truthful and to avoid assisting or condoning criminal or fraudulent acts or denigrating the justice system or subverting the litigation process.
The opinion also reminds readers that the lawyer’s course of conduct in such circumstances must be well thought through because the risk of disqualification still lurks, but in the end the opinion largely concludes with something that is mostly a restatement of the problem for Texas lawyers (and of my general inability to get horses standing so close to water to drink since Texas does have a version of ABA Model Rule 1.15 and confidential information certainly is “property”):
The Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party’s confidential information outside the normal course of discovery.
The insistence on referencing discovery and, thus, making it seem like this is solely a problem for litigators rather than all lawyers is also a bit unfortunate.