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ETHICS SPOTLIGHTThe Ethical Dilemma Posed by Surreptitiously Obtained Evidence Amy G. Gore, An attorney representing a client in a divorce
action suddenly discovers herself, or himself, in possession of evidence
that will virtually guarantee success for the client. Although
overjoyed, the attorney quickly comes to her senses and asks the
important question: where did this come from? Attorneys in all fields of
litigation have often found themselves in possession of surreptitiously
obtained evidence. Given the volatile nature of divorce cases, attorneys
specializing in this field have had more than their fair share of
dealing with questionably obtained evidence. Ethical and legal
considerations must be resolved prior to any attempt to submit the
evidence to court in order to avoid charges of ethical violations
against the attorney, or subjecting the client to injury arising from
the use of the evidence. Admissibility
of Evidence Obtained Illegally The general rule regarding illegally or otherwise wrongfully obtained
evidence is that, although it can be excluded from a criminal or
quasi-criminal proceeding, it is nevertheless admissible in civil
actions. Rogers v. Williams, 633 A.2d 747 (Del. Fam. Ct. 1993)
(videotape of inside of ex-wife's house surreptitiously made by
husband's new wife was admissible in child custody modification action);
In re Moore, 885 S.W.2d 722 (Mo. Ct. App. 1994) (letters written
by allegedly incompetent son and illegally obtained by son's mother were
admissible in conservatorship proceeding); Del Presto v. Del Presto,
97 N.J. Super. 446, 235 A.2d 240 (App. Div. 1967) (in divorce action,
love letters from husband to his paramour removed from husband's office
files by wife were admissible; photographs of inside of paramour's
apartment taken by private investigator were admissible); Sackler v.
Sackler, 15 N.Y.2d 40, 203 N.E.2d 481 (1964) (evidence obtained by
private investigators as a result of forced entry into residence was
admissible in divorce action); Richardson v. Richardson, 21 Fam.
L. Rep. 1506 (N.Y. Sup. Ct. 1995) (wife who made surreptitious copies of
husband's personal diary kept in briefcase within marital home could use
evidence in divorce action; court classified property as marital in
nature and denied husband had expectation of privacy in jointly owned
property); State ex rel State Farm Fire & Cas. Co. v. Madden,
192 W. Va. 155, 451 S.E.2d 721 (1994) (evidence illegally obtained by
insurance investigator was inadmissible, but could be used for purposes
of cross-examination); 29 Am. Jur. 2d Evidence § 589 (1994 &
Supp. 1999). The general rule of admissibility in civil actions is based
on the fact that the Fourth Amendment, upon which the exclusionary rule
is based, limits only governmental conduct; does not limit the conduct
of private parties. See generally County of Henrico v. Ehlers,
379 S.E.2d 457 (Va. 1989) (expressly declining to extent the Fourth
Amendment's exclusionary rule to a civil action). While illegally obtained evidence is not per se inadmissible, several
courts have precluded the use of evidence illegally or unethically
obtained under public policy grounds or as a sanction for the attorney's
alleged participation. See Golden Door Jewelry Creations, Inc. v.
Lloyds Underwriters Non-Marine Association, 865 F. Supp. 1516 (S.D.
Fla. 1994) (court, in its discretion, could sanction party for unethical
conduct of attorney and his agents by excluding all evidence tainted by
ethical violation). Since much of the evidence in dispute tends to involve illegally
obtained tape recordings that implicate state and wiretapping laws,
reference should be made to the laws of the particular jurisdiction.
Some statutes specifically preclude the use of evidence obtained from
recording made in violation of the statute. See Neb. Rev. Stat.
§86-712 (Reissue 1987) (no evidence derived from illegal wire tap may
be admitted into evidence in any trial); Culbertson v. Culbertson,
143 F.3d 825 (4th Cir. 1998) (taped recording of conversation
obtained in violation of 18 U.S.C. § 2520 is admissible for impeachment
purposes only); Kearney v. Kearney, 974 P.2d 872 (Wash. Ct. App.
1999) (illegal recordings of father's telephone conversation with child
that was given to guardian ad litem and psychological evaluator could
not be admitted into evidence, but could be offered). See generally
Leonard Karp, Domestic Torts: Family Violence, Conflict and Sexual
Abuse, § 6.03 et seq. (1989 & 1999 Cumm. Supp.). Attorneys’
Ethical Constraints Attorneys faced with the unexpected receipt of surreptitiously obtained
evidence face their own ethical dilemma. The use of evidence obtained by
improper means, even if done by a non-client, may subject the attorney
to charges of ethical violations. In those jurisdictions adopting the
Model Rules of Professional Conduct, the most prevalent ethical charge
is a violation of Model Rule 8.4(c), which precludes an attorney from
engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation. Ethics Advisory Committee of South Carolina Bar,
Opinion 91-14 (1991), reported in ABA/BNA Lawyers Man. on Prof.
Conduct [Ethic Opinions 1991-1995] at 1001:7905 (attorney may not
counsel or assist client in make improper recording of telephone
conversations in the course of a domestic dispute, since such action
would involve deceit, fraud and misrepresentation). When the evidence was obtained as a result of the client's own actions,
an attorney's ethical obligations run two-ways. While an attorney is
obligated to preserve his client's confidences, the attorney may not
assist the client in perpetrating a fraud upon the court or the opponent
without implicating the ethical restrictions contained in Model Rule 3.3
(candor towards the tribunal) and 3.4 (fairness to opposing party and
tribunal). Several ethical decisions have addressed an attorney's ethical
obligations when it is discovered that a client has engaged in
misconduct for the purposes of procuring evidence. See Alaska Bar
Association, Opinion 91-4 (1991), reported in ABA/BNA Lawyers Man. on
Prof. Conduct [Ethic Opinions 1991-1995] at 1001:1301 (attorney who
is personally involved in domestic dispute may not use surreptitiously
obtained recording of telephone conversation. To fail to obtain consent
of all parties to conversation, attorney is engaging in conduct
involving deceit); Alaska Bar Association, Opinion 92-2 (1992), reported
in ABA/BNA Lawyers Man. on Prof. Conduct [Ethic Opinions 1991-1995]
at 1001:1302 (attorney may not use surreptitiously obtained tape
recording of telephone conversation to conduct cross-examination, even
where attorney played no role in obtaining such evidence and tape is
otherwise admissible, because use of evidence involves conduct involving
deceit and misrepresentation); Arizona Bar, Opinion 88-08 , reported
in ABA/BNA Lawyer's Man. on Prof. Conduct [Ethics Opinion 1986-1990]
at 901:1411 (Attorney who discovers that his client in a dissolution
action made an illegal tape recording may withdraw from further
representation in which it was disclosed that the husband's attorney may
have advised the husband to engage in the illegal dissolution of marital
property. The facts were insufficient to raise a substantial question
concerning the fitness of opposing counsel and did not raise duty to
report the misconduct. However, wife's attorney may not use the taped
information to obtain a court order or advise opposing counsel of the
tape); Maryland Bar Association, Opinion 97-5, reported in ABA/BNA
Lawyers Man. on Prof. Conduct [Manual] at 1101:4304 (when client
records conversation in apparent violation of wiretapping statutes,
attorney may not destroy recording. Attorney must consult with client to
determine whether and to whom any disclosure should be made and who
should receive tape and copies thereof); North Carolina State Bar,
Opinion 192 (1995), reported in ABA/BNA Lawyers Man. on Prof. Conduct
[Ethic Opinions 1991-1995] at 1001:6613 (attorney may not listen to
or use tape recording of conversation obtained in violation of
wiretapping laws in domestic relations action); Standing Committee on
Legal Ethics of Virginia State Bar, Opinion 1448 (1992) (Attorney may
not advise client to make surreptitious recording of conversation for
purposes of generating evidence in child abuse case. Even if evidence
would be admissible, conduct was unethical as involving fraud, deceit
and misrepresentation). Where no apparent misconduct on the part of the client is apparent, the
use of the surreptitiously obtained evidence is more readily permitted.
Arizona Bar Opinion 93-14 (Sept. 23, 1993), reported in ABA/BNA
Lawyers Man. on Prof. Conduct [Ethics Opinion 1991-1995] at
1001:1409 (an attorney may, at his client's request, listen to a taped
recording that the client discovered in the marital home which contains
the recorded conversation between the opposing spouse and others; since
there is no suggestion that the recording was obtained in violation of
law, or by improper means, the attorney may make use of its contents,
but may have an obligation to safeguard the tape rather than return the
tape to the client); Virginia Ethics Opinion 1324 (Feb. 27, 1990), reported
in ABA/BNA Lawyers Man. on Prof. Conduct [Ethics Opinion 1986-1990] at
901:8768 (when a wife informs her attorney that she secretly recorded
her husband's conversations on a telephone in the marital home, the
attorney must advise the client to stop; the attorney may make use of
the recorded information if the attorney was not implicated as an
accessory or conspirator in the acquisition of the tape, however, the
use may result in an invasion of a privileged communication). Inadvertent
Disclosure Aside from the implications of illegal conduct by a client or someone
allegedly acting on the client's behalf, attorneys have, from time to
time, been the recipient of an inadvertent "gift" from their
opponent, such as when documents that would otherwise be subject to an
attorney-client or work-product evidentiary privilege are inadvertently
disclosed. When the claims result in complex and lengthy litigation, an
inadvertent disclosure may be the result of an innocent error in the
transmission of documents by the opposing attorney. The receipt of the
documents may also be the result of some third party's actions in
intentionally transmitting the documents to an attorney. Where the
information was obtained as a result on an inadvertent transmission by
the opponent, the ethical obligations on an attorney require that the
attorney refrain from examining the evidence, notify the opponent of the
receipt of such information and abide by the opponent's instructions
concerning the disposition of the information. ABA Formal Opinion 92-368
(1992); North Carolina State Bar, Opinion 252 (1997), reported in
ABA/BNA Lawyers Man. on Prof. Conduct [Manual] at 1101:6606
(attorney should refrain from examining documents, notify opposing
counsel, and follow the given instructions; attorney may not use
information obtained in documents to the advantage of his client);
Oregon State Bar, Opinion 1998-50, reported in ABA/BNA Lawyers Man.
on Prof. Conduct [Manual] at 1101:7102 (attorney must return
documents inadvertently disclosed by opposing counsel); Virginia State
Bar Opinion 1702, reported in ABA/BNA Lawyers Man. on Prof. Conduct
[Manual] at 1101: 8706 (attorney who receives fax from opponent that
he realizes was not intended to be sent to him may not read document and
must notify opponent). State Bar Ethics Committees have occasionally recognized distinction
between the an inadvertent disclosure by the opponent and disclosure
obtained by an interloper, and have allowed attorneys to make use of
evidence purposefully sent by a third party. See Maryland Bar
Association, Op. 89-53 (1989), reported in ABA/BNA Lawyers Man. on
Prof. Conduct [Ethics Opinions 1986-1990] at 901:4326 (attorney has
no obligation to court or opponent to disclose receipt of information
from third party); Virginia Bar Association, Op. 1076 (1988) (when
unknown third party sent attorney information that would otherwise be
subject to evidentiary privilege, attorney may make use of information,
retain or copy documents). The Michigan Bar also permitted the use of such surreptitiously obtained
evidence, provided neither the attorney or the client had any
involvement in the acquisition of the privileged information. Michigan
Bar Association, Op. CI-970 (1983) (if neither attorney or client
procured receipt of opponent's documents, attorney may make use of
documents in litigation provided it is otherwise admissible). The ABA disagreed with the approach taken by the various state bar
associations and concluded that when an attorney receives information
that appears to be confidential or privileged in nature from a third
party, the attorney must still refrain from examining the contents of
the evidence, except to the extent necessary to determine how to
proceed, notify the opponent of the receipt of the information, and
either abide by the opponent's instructions, or refrain from further use
until a judicial determination has been made as to the appropriate use
of the evidence. ABA Formal Opinion 94-382 (1994). The ABA reasoned that
by allowing the receiving attorney to retain the evidence pending
judicial determination of the appropriate use thereof, allows attorneys
to pursue abusive discovery charges or other claims on behalf of their
clients that might not otherwise have been discovered. See also
Committee on Professional Ethics of the Connecticut Bar Association,
Informal Opinion 96-4 (1996), reported in ABA/BNA Lawyers Man. on
Prof. Conduct [Manual] at 1101:2025 (when attorney receives
surreptitiously obtained copy of client's ex-spouses psychiatric
records, attorney may not review records and may not permit client to
review them. Unless attorney obtained patient's consent for disclosure,
attorney must return files to the proper recipient). Despite the protection such evidence could receive under the ABA ruling,
several jurisdictions have continued to permit attorneys to make
unfettered use of evidence obtained by third parties. Maryland Bar
Association, Op. 96-38 (1996), reported in ABA/BNA Lawyers Man. on
Prof. Conduct [Manual] at 1101:4304 (when third party obtained
documents from dumpster located on opponent's property and sent
documents to attorney, attorney has no obligation to reveal receipt of
documents to court or opponent, and if the documents are returned to the
opponent, the attorney should retain a copy for his files). Civil
Liability In addition to the potential ethical implications for an attorney, and
the adverse evidentiary results, another possibility that must be
considered when use of surreptitiously obtained evidence is contemplated
is the civil liability of the attorney, or client, or both. While the
opponent may continue to have the right to pursue civil remedies against
the wrongdoer if the evidence is not used, use of the evidence may
result in additional injuries to the innocent party. For instance, in Miller
v. Brooks, 472 S.E.2d 350 (N.C. App. 1996), discretionary review
denied, 483 S.E.2d 172 (N.C. 1997), the court found that the conduct
of the plaintiff's estranged wife, and the private investigator she
hired during a domestic dispute, could constitute an invasion of the
plaintiff's privacy, trespass, and conduct amounting to the intentional
infliction of emotional distress. The court found that marital
relationship did not preclude an viable tort action for invasion of
privacy since the couple had previously executed a separation agreement
in which they agreed to live separately and apart, and in which the
husband was given sole possession of the marital residence, the wife's
actions of installing a video camera in the former marital bedroom. Similarly, in Watters v. Dinn, 633 N.E.2d 280 (Ind. Ct. App.
1994), the court found a genuine issue of material fact concerning
whether or not a father had tortiously invaded the privacy of his
ex-wife's new husband when the father surreptitiously obtained mental
health records of the new husband during a custody dispute. The father
then used the records in an unrelated small claims dispute with the new
husband. Since the mental health records were irrelevant to the small
claims action, they were not entitled to a judicial privilege from
liability and the issue was permitted to go to the jury. Conclusion Faced with the possibility of using surreptitiously obtained evidence,
all attorneys must evaluate the possible risks of adverse consequences
to their clients. However, an attorney must also keep in mind his or her
own professional obligation as an officer of the court. © 1999 National Legal Research Group FAM-LAW-LIT:
A SURVEY OF CURRENT PERIODICAL
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