Ethics and Professional Liability – Georgia Bar Rule Case Studies

Posted March 7, 2014

Part 4 – Illegally [or Questionably] Obtained Evidence

Here is another hypothetical situation from my Attorney Ethics and Professional Liability CLE seminars. Previous articles have covered potential conflicts of interest, the threat of criminal prosecution, and communication with a represented party. The example below is seen often by family law practitioners, but similar challenges can impact attorneys in many practice areas.

Case Study #4 – What do you do when you think your client has illegally obtained evidence?

A new client comes into your office with boxes of documents and other materials. You see a number of typical items, including copies of email and text messages, Facebook screen shots, cell phone bills, and bank statements. There are also copies of audio and video recordings of the client’s spouse, photographs, and detailed GPS tracking data. Let’s just say it paints a less-than-positive picture of the spouse. As you review the sordid details, you start to question the source of this information.

Did your client have permission or authorization to access the information? Did your client “lay traps” to obtain this information? How do you advise your client? What do you do?

Questionable evidence issues are found in most areas of law

Based on my conversations with lawyers facing these types of situations, questionable evidence issues seem more prevalent in family law cases because of the spouses’ close proximity to certain types of information. But similar challenges occur in all areas of the law, including corporate law, where larger mistakes have greater ramifications on the client and attorney. Proprietary information may be illegally obtained, or a non-compete breached during evidence gathering. Be careful as you advise your clients while helping them build their cases.

Here is what the Georgia Bar Rules say

While this may seem like a minor example, many Bar Rules apply:

Rule 1.6 Confidentiality of Information
Rule 1.7 Conflict of Interest: General Rule
Rule 3.3 Candor Toward Tribunal
Rule 3.4 Fairness to Opposing Party
Rule 4.1 Truthfulness in Statements to Others
Rule 4.4 Respect for Rights Of Third Persons
Rule 5.3 Responsibilities Regarding Non-lawyer Assistants

You are responsible for the actions of your non-lawyer staff, but you could also be responsible for your client’s actions if you suggest or condone this activity. It is your obligation to question and validate the source of all information. When in doubt, ask your client or seek the assistance of an independent investigator. If the evidence was illegally obtained, you need to clearly state that the client can’t use it. If the client insists, this creates a conflict and you may be forced to withdraw if this causes you to violate a Bar Rule, perpetrate a fraud on the Court, or violate some other law. Your career isn’t worth the risk, and no one will punish you for doing the right thing when your client insists on doing the wrong thing.

If the evidence implicates either party in a crime, you probably can’t use it, particularly if it was obtained illegally. You need to first consider sending your client to the District Attorney (or a criminal defense attorney), then work on your case. Remember that you may reveal criminal conduct to prevent your client from causing “harm or substantial financial loss,” but only if the harm or substantial financial loss has not yet occurred. If the crime has already been committed, you are ethically and legally obligated to uphold your client’s privilege and confidentiality.

Lying under oath can create a divisive conflict

You may have been in this situation before. Your client tells you he will testify one way, but then starts testifying to the contrary. You and your client know the testimony is a lie, but it happens so quickly, you consider letting it go so you don’t put the client in a negative light.

Stop! Talk to your client, confirm the lie, and then change or correct the testimony. If your client won’t agree to testify truthfully, stop the testimony and take appropriate action using your procedural Rules and Ethical Rules to guide you and minimize the impact to the client. If you let this go and your client gets caught, as the perpetrator of fraud you could be facing sanctions by the Court and a Bar Complaint with some potentially career altering consequences.

When in doubt, ask for assistance

These situations can get complicated, and the penalties can be harsh. Before you react, consider seeking assistance from independent, experienced counsel.

If you can’t make it to a seminar, please join my LinkedIn group to participate in the online discussion – Attorney Ethics and Professional Liability.

Be careful out there, it’s a minefield!

Douglas Chandler