Ethics Opinion 242

Ethical Obligations of Attorney Holding Documents Provided by Client That May Be Property of Third Party

An attorney whose client provides documents that may be the property of the client’s former employer should, upon the client’s request, return the documents to the client if the client has a plausible claim to ownership of them. As to documents with respect to which the client has no such claim, the attorney should return them to the employer unless to do so would reveal confidences protected by Rule 1.6, in which event the attorney must preserve the documents and may not permit them to be used inconsistently with the attorney’s fiduciary duty to the owner with respect to such property.

Applicable Rules

• Rule 1.15 (Safekeeping Property)
• Rule 1.2(e) (Scope of Representation)
• Rule 1.6 (Confidentiality of Information)
• Rule 3.4(a) (Fairness to Opposing Party and Counsel)

Inquiry

Inquirer has custody of certain documents provided by the client, including internal company records of Client’s former employer. Some of the documents are originals and some are copies, and at least some of the documents in both categories (originals and copies) do not arguably belong to the Client, while some of the copies may. The Company knows generally that Client or Inquirer has some documents, but not their identity; it claims they belong to it and wants them back. Client asserts that some are his and has asked Inquirer to return them to Client, not the Company. Client also wants access to all of the documents that Client provided to Inquirer so that Client can use them in writing a book about the Company, apparently one the Company would not welcome. The questions are whether Inquirer can return the documents to the Client, must turn them over to the Company, or should keep them in Inquirer’s files, and, if Inquirer must keep the papers, whether Inquirer could permit the Client to have access so he can use the documents to write his book.

Discussion

Inquirer’s obligations depend initially upon whether Client has any legitimate claim to custody or use of the documents, an issue of fact and law beyond the Committee’s power to resolve.

In general, Rule 1.15 obliges a lawyer to return a client’s property to the client upon the client’s request. Rule 3.4(a) also provides that a lawyer shall not:
 

(a) Obstruct another party’s access to evidence or alter, destroy or conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding. Unless prohibited by law, a lawyer may receive physical evidence of any kind from the client or from another person. If the evidence received by the lawyer belongs to anyone other than the client, the lawyer shall make a good faith effort to preserve it and return it to the owner, subject to Rule 1.6. . . . [Emphasis added.]¹

The Rules do not address the lawyer’s obligations when it is unclear to whom the evidence “belongs.” The comments refer generally to “the requirements of paragraph (a) with respect to return of property to its rightful owner. . . .” Rule 3.4 Comment [3].

Comment [7] adds that:

. . . if it is reasonably apparent that the evidence is not the client’s property the lawyer may not retain the evidence or return it to the client. Instead, the lawyer must, under paragraph (a), make a good faith effort to return the evidence to its owner.

However, Comment [5] adds:
Because the duty of confidentiality under Rule 1.6, the lawyer is generally forbidden to volunteer information about physical evidence received from a client without the client’s consent after consultation. In some cases, the Office of Bar Counsel will accept physical evidence from a lawyer and then turn it over to the appropriate persons; in those cases this procedure is usually the best means of delivering evidence to the proper authorities without disclosing the client’s confidences. . . .²

On the facts stated, we assume that disclosure of the copies to the Company would constitute disclosure of a confidence or secret of the Client within the broad definition of those terms in Rule 1.6, which includes “[i]nformation gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.”³ If Rule 1.6 and the need for client consent preclude referral of the copies to Bar Counsel, and given Client’s assertion of rights to the papers, we believe the obligations of Rules 1.6 and 1.15 require the lawyer to comply with the Client’s request to return the papers to the Client insofar as the Client has a plausible claim to ownership of them. Although here it appears that Client desires to preserve the papers, rather than destroy them, the lawyer should appropriately advise as to Client’s legal obligations concerning preservation, disclosure, and use of the copies, in view of the competing claims of the Company.⁴

As to papers for which the Client has no plausible claim of ownership, while Rule 1.6 may preclude return of the documents to the company, it would not preclude the Inquirer from “preserv[ing]” them. Accordingly, retaining custody would be the proper course of conduct, with future disposition to be governed or directed by a court order or by some agreement of the parties.

Where the lawyer retains custody of the documents, other rules are implicated. Rule 1.15(a) obliges a lawyer who is in possession of property of a client or a third person to hold it separately from the lawyer’s property. Rule 1.15(b) further provides:

Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6.

 It is unclear how Rule 1.15 should apply here, if at all. Comment [7] states: “With respect to property that constitutes evidence, such as the instruments or proceeds of crime, see Rule 3.4(a).” This suggests that Rule 3.4 should govern when the property consists of “evidence,” at least in the event of a conflict with Rule 1.15. In this case, however, it is not clear whether all of the documents in question would be deemed “evidence” under Rule 3.4, rather than mere third-party property under Rule 1.15. To the extent that there is a difference between the categories and rules, it would seem to relate more to the obligations the Inquirer has to the government or the court with respect to “evidence,” while the obligations to third persons to whom the property belongs may be deemed essentially the same whether or not it is also “evidence.”

The final clause, subjecting the obligations of Rule 1.15 to Rule 1.6, literally applies only to the delivery and accounting duties not to the notice duty in the first sentence. In this case it may be that Inquirer could comply with a generalized notice obligation without breaching Rule 1.6, so long as Inquirer is not obliged to identify the particular documents. As previously noted, the Client’s former employer is aware that Client or Inquirer has some documents, but not which or how many, so that giving general notice might not itself require a disclosure contrary to Rule 1.6. This is a question of fact that we cannot resolve.

The requirements of Rule 1.15(b) to “promptly deliver” to a third person any “funds or other property” that the third person “is entitled to receive,” and upon request of that person to “promptly render a full account,” are both subject to Rule 1.6. To the extent that such an accounting would require disclosure of information protected by Rule 1.6, those requirements need not be satisfied, for the reasons noted in connection with the discussion of Rule 3.4 and its similar reference to Rule 1.6.

Rule 1.15 and its comments shed light on the question whether Inquirer can keep custody of the documents belonging to the Company but give the Client access to the documents for use in writing his book. Comment [1] begins: “A lawyer should hold property of others with the care required of a professional fiduciary.” Comment [4] elaborates:

Third parties, such as a client’s creditors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.

In addition, under Rule 1.2(e), if a lawyer knows that what the client proposes to do is “criminal or fraudulent,” the lawyer may not “assist” the client.

Permitting the Client to use Company documents in Inquirer’s custody for a book about the Company might well breach Inquirer’s fiduciary duty. Similarly, Inquirer’s cooperation with the Client could subject the Inquirer to claims of wrongful interference, or participation in the Client’s possible breach of fiduciary obligations, and possible tort liability.⁵ However, these are legal rather than ethical questions, and hence are beyond the Committee’s jurisdiction.

Inquiry No. 92-10-38
Adopted: September 21, 1993

1. Rule 3.4(a) is based generally on Rule 3.4(a) of the ABA Model Rules, which provides:
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. . . .
As the italicized provision of D.C. Rule 34(a) is not contained in the ABA Model Rules, they and opinions construing them provide little guidance here.
2. The additional comments are directed primarily to concerns about alteration, destruction or concealment of evidence 2 in the face of pending or imminent process, rather than competing claims of ownership or rights to use and disclose.
3. Cf. Dean v. Dean, 607 So. 2d 494 (Fla. Dist. Ct. App. 1992).
4. We need not address the situation that would be presented if the lawyer had obtained the copies from a person other than a client. Compare In re Shell Oil Ref., 143 F.R.D. 105 (E.D. La.), as amended, 144 F.R.D. 73 (E.D. La. 1992).
5. Cf. GTE Prods. Corp. v. Steward, 414 Mass. 721, 610 N.E.2d 892 (1993).