Your Client Has Obtained Privileged Documents Belonging to the Adversary. What Do You Do Now?

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As lawyers, we must frequently weigh our duties to our clients against our duties to courts and third parties, including adversaries. One way this tension presents itself is when a client comes into possession of confidential or privileged documents belonging to the other side. Should we look at the documents? Can we use them to our client’s advantage? Must we disclose that our client has received the confidential information? The answers depend, to some extent, on how the information is obtained.

A recent opinion by the New York State Bar ethics committee concludes that, in some circumstances, Rule 1.6 prohibits the lawyer from disclosing the fact that his client has obtained privileged documents belonging to an adversary unless the lawyer knows the client has engaged in fraudulent or criminal conduct or "governing judicial decisions or other law require disclosure."

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