If a lawyer finds opposing counsel's left-behind notes showing a violation of a court discovery order, must the lawyer tell the court?

Plain-English summary

A lawyer's opposing counsel left behind a note pad after a deposition. The note pad indicated a violation of a court order that prohibited disclosure of discovery. The lawyer asked what to do with the information.

The committee was of the unanimous opinion that the lawyer should first make sure that disclosing the note pad information would not prejudice the lawyer's own client in violation of RPC 1.6. Assuming no violation of RPC 1.6, it was the sense of the committee that, as an officer of the court, the lawyer has a duty to bring the information about the apparent violation of the court's order to the court's attention.

Currency note

This opinion was issued in 1993, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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: Must a lawyer report opposing counsel's apparent violation of a court order?

A: The committee said that, assuming reporting would not violate the lawyer's own RPC 1.6 duty to the client, the lawyer has a duty as an officer of the court to bring the apparent violation to the court's attention.

Q: What does the lawyer have to check first?

A: The committee said the lawyer should first make sure that disclosing the note pad information would not prejudice the lawyer's own client in violation of RPC 1.6.

Background and rules framework

The opinion applied RPC 1.6 (corresponding to ABA Model Rule 1.6), the confidentiality rule. The committee made the lawyer's own client's interest the first checkpoint: if disclosing the found information would prejudice that client in violation of RPC 1.6, confidentiality controlled. Only where RPC 1.6 was not implicated did the committee locate a duty, grounded in the lawyer's role as an officer of the court, to report the apparent order violation.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6

See also

• WA Ethics Op. 1495: Duty to Turn Over Evidence From a Client
• WA Ethics Op. 1496: Disclosing a Client's False Statements to a Tribunal

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=607

Original opinion text

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

Advisory Opinion: 1526
Year Issued: 1993
RPC(s): RPC 1.6
Subject: Inadvertent disclosure by opposing counsel; duty to inform court of opposing counsel's violation of court order

[The inquiring lawyer's opposing counsel left behind a note pad after a deposition. The note pad indicated a violation of a court order prohibiting disclosure of discovery.] The Committee was of the unanimous opinion that you should first make sure that disclosure of the note pad information would not prejudice your client in violation or RPC 1.6. Assuming no violation of RPC 1.6, it was the sense of the Committee that as an office of the court you have a duty to bring the information about apparent violations of the court's order to the court's attention.