Can a lawyer or the lawyer's investigator take documents from the trash discarded by opposing counsel's office?

Plain-English summary

The Committee was asked whether it is proper for an attorney or the attorney's agent to go to the trash receptacle used by opposing counsel and remove bags of trash containing copies of pleadings, correspondence, and similar materials discarded in the normal course of the office's operations. The facts described a hotly contested, high-value case nearing trial during settlement negotiations, in which one attorney sent an investigator or other agent to retrieve opposing counsel's discarded trash.

The opinion concluded that such conduct is improper. It reasoned that removing, or causing the removal of, trash containing documents from opposing counsel's office violates at least the spirit of the Code: EC 1-5, because it is not in keeping with high standards of professional conduct and is not temperate and dignified; DR 1-102(B)(5) and (6), as prejudicial to the administration of justice and adversely reflecting on the lawyer's fitness to practice; DR 7-106(C)(6), as undignified or discourteous conduct degrading to the tribunal; and Canon 9 (with EC 9-2 and EC 9-6), as an appearance of professional impropriety that diminishes public confidence in the legal system and profession.

The opinion further noted that an attorney might be ethically required to withdraw from the case if he or she came across confidential information, citing Henry Drinker's Legal Ethics, an opinion of the New York City and County bar committees, and ABA Formal Opinion 47, which requires withdrawal by an attorney who, even inadvertently, receives an improper disclosure of the opposing party's confidences. The opinion took no position on whether such an attorney should be subject to discipline, but found the conduct improper.

Currency note

This opinion was issued in 1979, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The cited provisions have since been recodified, and modern rules address the handling of an opponent's inadvertently disclosed materials. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer go through the opposing firm's discarded trash for useful documents?

A: The opinion concluded that it is improper for a lawyer, or the lawyer's agent, to remove discarded documents from opposing counsel's trash receptacle.

Q: Does it matter that the documents were thrown away?

A: The opinion treated retrieving discarded documents from opposing counsel's trash as improper regardless, finding it prejudicial to the administration of justice, undignified, and an appearance of impropriety.

Q: What happens if the lawyer finds confidential information that way?

A: The opinion stated that an attorney who came across confidential information might be ethically required to withdraw from the case, citing ABA Formal Opinion 47 on inadvertent receipt of an opponent's confidences.

Background and rules framework

The opinion applied the former Code's general-misconduct provisions (DR 1-102(B)(5) and (6)), its rule against undignified conduct before a tribunal (DR 7-106(C)(6)), the professional-standards consideration EC 1-5, and the appearance-of-impropriety principle of Canon 9 (EC 9-2, EC 9-6), subjects now treated by Model Rule 8.4 (misconduct) and Model Rule 4.4 (respect for the rights of third persons). It relied on ABA Formal Opinion 47 for the withdrawal point.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 1-102(B)(5), (6) (conduct prejudicial to the administration of justice; reflecting on fitness) (cf. Model Rule 8.4)
• DR 7-106(C)(6) (undignified or discourteous conduct)
• EC 1-5; Canon 9, EC 9-2, EC 9-6 (professional standards; appearance of impropriety) (cf. Model Rule 4.4)

Other opinions and authorities cited:

• ABA Formal Opinion 47 (withdrawal after inadvertent receipt of an opponent's confidences); Drinker, Legal Ethics (1958); New York City/County bar Opinion 107

See also

• Alaska Ethics Op. 2019-1: Obtaining Confidential Information
• Alaska Ethics Op. 2019-3: Intentional Receipt of Confidential Information
• Alaska Ethics Op. 97-1: Receiving Confidential Materials From an Opposing Party

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/79-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 79-2
Is it Proper for an Attorney or an Attorney's Agent to Go to the Trash
Receptacle Used by Opposing Counsel and Remove Materials that were
Discarded in the Normal Cause of Operation?
The question posed to the Committee is:
Is it proper for an attorney or an attorney's agent to go to the trash
receptacle used by opposing counsel and remove bags of trash containing,
among other things, copies of pleadings, correspondence, etc., that were
discarded in the normal course of opposing counsel's operations?
The basic facts appear to be that as a hotly-contested case, involving
substantial amounts of money, neared trial and while settlement negotiations
were in progress, one attorney dispatched an investigator or someone else on
the attorney's behalf to go to the trash receptacle used by his opposing counsel
and remove bags of trash that had been disposed there in the normal operation
of the opposing counsel's office.
Since a lawyer who removes or causes removal of trash containing
documents from opposing counsel's office violates, if not the express letter of
the Code of Professional Responsibility, then at least the spirit of it, this
Committee finds such actions to be improper. Such conduct violates EC 1-5
inasmuch as it is not in keeping with "high standards of professional conduct"
and is not "temperate and dignified." While it is not quite such a clear violation,
in this Committee's opinion, digging through and removing opposing counsel's
trash is "prejudicial to the administration of justice" and "adversely reflects on
his fitness to practice law" in contravention of DR 1-102 (B)(5) and (6). A
violation of DR 7-106 (C)(6) also exists inasmuch as counsel has engaged "in
undignified or discourteous conduct which is degrading," in the Committee's
opinion, "to the tribunal." Finally, such acts clearly contravene Canon 9's
mandate that a lawyer should avoid even the appearance of professional
impropriety. EC 9-2 and 9-6. While the conduct does not appear to be illegal, it
nevertheless "diminishes public confidence in the legal system or in the legal
profession." EC 9-2. Clearly, a lawyer engaging in such activities has failed to:
conduct himself so as to reflect credit on the legal profession and to inspire the
confidence, respect, and trust of his clients and of the public; and to strive to
avoid not only professional impropriety but also the appearance of impropriety.
EC 9-6.
Such an attorney might be ethically required to withdraw from the case if
she or he came across any confidential information. As said by Henry Drinker:
A lawyer must also observe the customs of the Bar as well as the confidences of
another lawyer, although indiscreetly given and improperly received, and
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although this may entail his withdrawal from the case. Drinker, Legal Ethics, 195
(1958).
See, also, Op. No. 107, Opinions of the Committees on Professional Ethics of the
Association of the Bar of the City of New York and the New York County
Lawyer's Association (1958 ed.). Formal Opinion No. 47 of the American Bar
Association requires withdrawal by an attorney who, even inadvertently,
receives an improper disclosure of the opposing party's confidences.
In conclusion, while this Committee takes no position on whether an
attorney engaging in the actions considered herein should be subject to
discipline, it does find the conduct to be improper.
Adopted by the Board of Governors on September 9, 1979.

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