A client hands the lawyer documents the client obtained by violating a restraining order; can the lawyer use them, must they be returned, and what about discovery?

Plain-English summary

The inquiry concerned a client who obtained financial statements in violation of a restraining order and delivered them to the lawyer. The committee addressed four points. First, the lawyer may not disclose the circumstances under which the lawyer came into possession of the documents, which the client obtained contrary to a court order, without the client's consent under RPC 1.6. Second, if the client consents under RPC 1.6, the lawyer could use the information in the documents after advising the client of the implications of doing so.

Third, the committee was of the opinion that RPC 3.4(a) requires the lawyer to advise the client that the documents must be returned; if the client will not consent to returning them, the lawyer must withdraw, return the documents to the client, and advise her of the implications of failing to return them. Fourth, attention must be paid to the lawyer's discovery obligations: if proper discovery requests are made and the client will not consent to disclosing the information, the committee was of the opinion that the lawyer's obligation would be to withdraw from further representation.

Currency note

This opinion was issued in 1990, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer reveal that a client got documents by violating a restraining order?

A: Under this 1990 opinion, not without the client's consent. The committee was of the opinion that the circumstances of obtaining the documents are protected under RPC 1.6.

Q: Do the documents have to go back?

A: The committee was of the opinion that RPC 3.4(a) requires the lawyer to advise the client the documents must be returned; if the client refuses, the lawyer must withdraw, return the documents to the client, and advise her of the implications.

Q: What happens if the other side serves proper discovery for the documents?

A: The committee was of the opinion that if proper discovery is requested and the client will not consent to disclosure, the lawyer's obligation would be to withdraw from further representation.

Background and rules framework

The opinion applies several rules together. RPC 1.6 protects the confidentiality of how the documents were obtained. RPC 3.4(a), Washington's version of ABA Model Rule 3.4(a) on fairness to the opposing party, drives the duty to advise that the documents must be returned. RPC 1.2 governs the scope of representation, and RPC 1.15 (the safekeeping/termination provision as numbered at the time, now ABA Model Rule 1.16) frames the withdrawal the committee directs when the client will not return the documents or consent to disclosure in proper discovery.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation)
• ABA Model Rule 1.6 (confidentiality of information)
• ABA Model Rule 1.16 (declining or terminating representation)
• ABA Model Rule 3.4 (fairness to opposing party and counsel)
• Washington RPC 1.2, RPC 1.6, RPC 1.15, RPC 3.4(a)

See also

• WA Ethics Op. 1322: Undisclosed Heir and Misdistributed Estate Funds
• WA Ethics Op. 1305: Client Request for Sealed Documents a Statute Protects

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=404

Original opinion text

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

The Committee reviewed your inquiry concerning a client who obtained financial statements in violation of a restraining order, and delivered them to you. First, the Committee was of the opinion that you may not disclose the circumstances under which you came into possession of the documents which your client obtained contrary to a court order, without the consent of your client pursuant to RPC 1.6. Second, if your client consented pursuant to RPC 1.6, you could use the information obtained in the documents after advising the client of the implications of using that information. Third, the Committee was of the opinion that RPC 3.4(a) requires that you advise your client that the documents must be returned, but if your client would not consent to returning the documents, you must withdraw, return the documents to your client and advise her of the implications of failing to return them. Fourth, the Committee was of the opinion that attention must be paid to your discovery obligations if proper discovery is requested. In the opinion of the Committee, if proper discovery requests were made and your client would not consent to your disclosing the information, your obligation would be to withdraw from further representation of your client.