What to do if Someone Offers you an Opponent’s Information.

By David Hricik, Mercer Law School

The L.A. bar association is the latest to offer an opinion on what to do if someone, say the opposing party’s former employee, offers you information from the opposing party that looks purloined or seems confidential.  In Los Angeles City Bar Ass’n Professional Responsibility & Ethics Committee Opinion No. 531 (July 24, 2019) (here), the committee gave some useful guidance.

First, the committee stated the lawyer had to determine if the person possessed the information unlawfully.  If so, the lawyer might need to alert the court or appropriate authorities.

Second, the lawyer had to determine if the information was privileged or otherwise protected. As stated in a prior post, this can trigger obligations to at least notify the opposing party.

Third, because the lawyer does not represent the person providing the information, the lawyer had to comply with Rule 4.3, which, stated generally, requires the lawyer advise the person the lawyer does not represent her, and to ensure the lawyer does not appear disinterested.

Finally, the lawyer may need to consult with the client about what to do next, and to ensure the client does not use the lawyer’s services to unlawfully access information.

Of course, disgruntled former employees are often valuable sources of information but, as this opinion shows (in good detail!), there are things to be wary of.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

3 thoughts on “What to do if Someone Offers you an Opponent’s Information.

  1. 1

    It just shocks me that professors think they can talk about ethics.

    1. 1.1

      Meet one of the blog’s favorite patent maximalists, folks! He’s a very serious person.

      This particular one is also obsessed with Barack Obama. In 2019. Contemplate that for a moment.

      Also try to imagine why on earth a person who has compared critics of software patents to I-sl-amic fun-da-ment-@list “t-e-r-r-o-r-I-s-ts” thinks he has any ground on which to criticize others regarding ethics.

      As I’ve said before, these people are beyond parody. But they do have money to throw at the patent system, when they aren’t throwing it at underage girls or coke.

      1. 1.1.1

        when they aren’t throwing it at underage girls or coke.

        and

        these people are beyond parody

        Malcolm and his number one meme of Accuse Others Of That Which Malcolm Does/Is runs rampant and itself is a PRIME item to consider for Malcolm’s own comment of “try to imagine why on earth [Malcolm] thinks he has any ground on which to criticize others regarding ethics

        Malcolm – the person who has had more posts expunged for violating posting rules (as shabbily as those are enforced) — or to be more precise, the person who has had more posts expunged THAN ALL OTHERS COMBINED – even ‘sniffing’ at ethics is stultifying.

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