13 CAEO, ETH 2013-188

• Court: California

ETH 2013-188 Formal Opinion No. 2013-188 California Ethics Opinions 2013 ISSUE: If an attorney receives from a non-party a confidential written communication between opposing counsel and opposing counsel's client, what should the attorney do if the attorney reasonably believes that the communication may not be privileged because of the crime-fraud exception to the attorney-client privilege? THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT DIGEST: If an attorney receives an unsolicited intentionally transmitted written communication between opposing counsel and opposing counsel's client under circumstances reasonably suggesting that it is a confidential communication apparently sent without the consent of its owner, the attorney may not ethically read the communication, even if she suspects the crime-fraud exception might vitiate the privilege. The attorney must notify opposing counsel as soon as possible that the attorney has possession of the communication. The two attorneys should try to resolve the privilege issue or, if that fails, obtain the assistance of a court. Attorney may not read, disseminate, or otherwise use the communication or its contents absent court approval or consent of its owner.          AUTHORITIES          INTERPRETED: Rule 1-100(A) of the Rules of Professional Conduct of the State Bar of California.^[1]          Code of Civil Procedure section 2018.050.          Evidence Code sections 915, 952, 954, and 956.          STATEMENT OF FACTS          Attorney represents Client in a fraud lawsuit against Company. During discovery, Attorney receives an unsolicited email from an anonymous Sender, with subject line “Client v. Company, ” and an icon notice of an attachment to the email. Upon opening the email, the first three lines of the email read, “From: [no sender]” / “To: Attorney” / “Subject: Client v. Company.” Attorney's replies to the email consistently generate an automatic “undeliverable” bounce-back notification. The text of the email reads as follows:

I am an ex-employee of Company. I wish to remain anonymous. I don't want any legal help from you and do not want to hear from you at all. Providing you with the attached document is all the help you will get from me. The attached document is a confidential communication between Company and your opposing counsel. It proves that Company planned and perpetrated the fraud with the advice and assistance of your opposing counsel, who was retained for that purpose, and who has been actively involved in the fraudulent scheme from the very outset, long before the incidents described in your complaint. The attached document will prove your case. Read it and see for yourself.

         May Attorney ethically open and read the attachment? Must Attorney notify Company's counsel that Attorney has the attachment? When may Attorney use the attachment or the information conveyed in it?          DISCUSSION          The attorney-client privilege protects disclosure of a confidential communication between client and lawyer. (Evid. Code, § 954.)

“[C]onfidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

(Evid. Code, § 952.)          The attorney-client privilege is a core value of the American justice system. It has been the “hallmark of our jurisprudence for almost 400 years.” Costco Wholesale Corporation v. Superior Court (2009) 47 Cal.4th 725 [101 Cal.Rptr.3d 758]:

Its fundamental purpose “is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. [Citation.] ... [¶] Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. As this court has stated: „The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.' [Citations.]” “[T]he privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any

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