Unlawful Evidence-Gathering

The second clause of Rule 4.4(a) bars a lawyer from using “methods of obtaining evidence that violate the legal rights of” a third person.¹ The first clause, covered in the preceding sections, asks why the lawyer chose a tactic, and a substantial client-serving purpose defeats it. This clause asks how the lawyer got the evidence. A lawyer with an entirely legitimate goal still violates it when the method infringes a right belonging to the person on whom it was used.

The clause lists no rights of its own; it borrows them from the rest of the law. Every application therefore begins by naming the right that the method infringed. The four subsections below put that question to four methods: self-help seizure of documents, questioning an insider about an organization's privileged communications, contact with jurors, and secret recording or online access.

Violating Legal Rights

A lawyer may not act as a legal vigilante. However valuable the evidence, and even if the opposing party would have to produce it in discovery, the lawyer may not obtain it by improper means.²

A party's entitlement to evidence is an entitlement to a process, not to the objects themselves. Discovery has limits (relevance, privilege, other protections), and the holder may invoke them and have a judge rule before anything changes hands.³ Self-help skips every one of those safeguards, so no court ever sorts the privileged from the unprivileged. That a judge would probably have ordered production later does not restore what the holder lost, which was the right to have a judge, and not the lawyer or the client, make the call.

Burglary is the plain case. A party entitled to a company's documents has no license to break into its offices, or to encourage anyone else to, in order to get them. The same holds when the documents are neither privileged nor otherwise protected: a lawyer who participates in or encourages surreptitious, unlawful schemes to obtain even properly discoverable materials acts unacceptably.⁴ Whatever label the lawyer gives the method, any method that infringes the holder's legal rights falls within the clause.

In Lipin v. Bender, a client who also worked as her lawyer's employee saw her opponent's documents on a hearing-room table while opposing counsel was occupied with discovery arguments, and she covertly took and copied them.⁵ The lawyer did not know of the taking when it happened, but he later condoned it by reviewing and using the copies.⁶ The court dismissed the client's lawsuit, reasoning that “regardless of whether the documents were privileged, the highly improper manner in which they were obtained, combined with their subsequent use by plaintiff's counsel to defendants' detriment, constitutes a sufficient basis for the court's action.”⁷

Three features of that holding track the clause. The court looked at the manner of acquisition and did not make privilege a precondition, which fits a clause aimed at methods and not at the character of what they produce. The lawyer's later review and use of the copies tied the client's taking to the representation, so a lawyer who learns of an improper acquisition and then exploits it cannot treat it as someone else's act. And the sanction fell on the claim itself, which removed the advantage the taking was meant to produce.

Zealous advocacy does not excuse any of this, because the duty to advocate carries its own boundary. Describing that duty in Nix v. Whiteside, the Supreme Court called it “limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth,” and added that counsel, while obliged to take all reasonable lawful means to reach the client's objectives, is precluded from assisting the client in presenting false evidence or otherwise violating the law.⁸ The case concerned false evidence and not evidence-gathering, so it supplies only a premise. It is the premise on which the second clause rests: the client is entitled to every lawful means and to no unlawful one.

The two situations differ in what the method took, and from whom. The documents on the opponent's table belonged to the opposing side, which was entitled to have any dispute over them resolved by a court; the bystander's memory belonged to the bystander. In each case the question is whether someone else's right stood in the way, and the lawyer's eagerness for the evidence has no bearing on the answer. That is where this clause parts from the purpose clause. A client-serving aim defeats a purpose challenge but does nothing for an unlawful method, because every lawyer who gathers evidence unlawfully is trying to help the client.

Two questions that students tend to ask do not decide the issue. Whether the evidence was discoverable is irrelevant, because discoverability does not authorize self-help. Whether it was privileged does not decide the issue either, because privilege is one right a method can infringe and not the only one. The rule's first comment names intrusions into privileged relationships as one form of the violation, and the next subsection takes up that setting.⁹

Privileged Communications

The rule's first comment gives one example of an unlawful method: “unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.”¹¹ The clause therefore bars a lawyer from trying to obtain, from an entity's employees or agents, any information protected by the attorney-client privilege or the work-product doctrine.¹² A privileged conversation between an organization and its lawyers is a right the organization holds against its opponents, so a method that draws the substance of that conversation out of anyone who took part in it infringes the right. The method is usually informal, a telephone call or an interview with an insider, which is why fact patterns on this subject pair a contact the rules allow with a question they do not.

Two questions arise whenever a lawyer wants to interview someone connected with an opposing organization, and the analysis fails when they are merged. The first is whether Rule 4.2 allows the contact. That rule limits ex parte contact with a person represented by another lawyer, but most courts have held that it does not prohibit interviews with former employees, and Comment 7 confirms that it permits contact with former constituents of an entity.¹³ Because disgruntled ex-employees are often a fruitful source of information against their erstwhile employer, that caveat is an important one.

The second question is what the lawyer may ask once the contact is allowed, and Rule 4.4(a) governs it. Comment 7 to Rule 4.2 links the two rules: “[i]n communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization,” that is, privileged or other protected information.¹⁴ Permission to talk therefore covers questions about what the person saw and did, and it stops short of questions about what the organization's lawyers said.

An employee's willingness to answer does not change the analysis, and the reason lies in who holds the privilege. The privilege covering the organization's communications with its counsel belongs to the organization, and only the organization can waive it.¹⁵ An employee, current or former, is a witness who happened to be present for the advice. When that witness repeats what the lawyers said, the witness gives away something that was never theirs to give, and the interviewing lawyer has obtained by a side route a disclosure the organization never agreed to make. The “third person” whose rights the clause protects is therefore the employer.

An exam stem may report that a plaintiff's lawyer interviewed a former employee of the defendant with no notice to the defendant's counsel, and then ask whether Rule 4.4(a) was violated. That fact settles nothing by itself; the answer turns on the questions the lawyer asked.

The permitted contact did not taint the whole conversation, and the first half of the interview was proper. The violation begins at the question that targets the privilege. That question announces its own target, so the lawyer cannot claim ignorance of what it seeks, and Comment 1 reaches even an attempt to obtain the information.¹⁶ Two shortcuts lose points in an exam answer. One concludes that Rule 4.2 permits the contact and therefore nothing is wrong, which skips the second question. The other treats the employee's consent as a waiver, which misidentifies the holder of the privilege.

Government lawyers answer to the same clause, with added weight. The ABA's standard for prosecutors aims to prevent overreaching by trained advocates who carry the authority of the government and to prevent interference with an actual or imminent attorney-client relationship. Rule 3.8(b) and (c) accordingly require a prosecutor to take reasonable steps to facilitate an accused's access to counsel and forbid a prosecutor to procure a waiver of important pretrial rights from an unrepresented accused.¹⁷ The concern is stronger, not weaker, when the target has a lawyer. A prosecutor who authorizes agents to approach a represented target with scripted questions designed to induce a waiver of attorney-client privilege, and to expose trial strategy, uses a method that violates the target's rights. A prosecutor acts for the government, so a deliberate scheme of that kind warrants discipline well beyond a mere rebuke.¹⁸

Investigating Jurors

Jurors are third persons within Rule 4.4(a), and learning about the people who will decide a case is ordinary trial preparation. The clause regulates how the lawyer learns it.²⁰ A lawyer may find out a great deal about prospective jurors but may not reach any of them, so the question on any fact pattern is whether the lawyer, or someone acting for the lawyer, touched a juror.

The line falls at contact because of the position a juror occupies. A verdict is supposed to rest on evidence and argument presented in open court, where both sides can hear it and respond. A private exchange with a lawyer puts something into a juror's mind that the opposing party never sees and cannot answer, and nobody can measure how much it counted. The rule therefore does not ask whether the conversation concerned the case. Any contact is treated as capable of influencing the proceedings, even contact about something unrelated, since a juror who has warmed to one lawyer carries that feeling into the jury room.

Research that involves no contact stays on the permitted side. A lawyer who pulls deeds, judgments, and voting records from public files to evaluate the jury pool is reading material the public may see. No juror is approached, burdened, or influenced, and no legal right of any juror is infringed, so the clause has nothing to catch. A lawyer can assemble a detailed picture of each venire member from public sources and use it in deciding whom to question and whom to strike.

Contact is prohibited whether it happens in person or through an agent, and whether it is hostile, friendly, or entirely off the subject of the trial. A lawyer who steps into a courthouse elevator with a juror from the lawyer's own trial and hears a remark about the weather must not answer. The proper response is silence, followed by a report of the encounter to the judge. Small talk looks harmless, but a rule that tolerated it would force a judge to sort harmless conversations from harmful ones after the fact. Silence leaves nothing to sort, and the report puts the encounter on the record, where the judge and the opposing side can decide whether anything more is needed.

The agent point matters most when a lawyer has an indirect route to a juror, and the exam version is a lawyer who insists that no juror was ever spoken to.

Attributing the agent's contact to the lawyer keeps the prohibition from being avoided by a handoff. If a lawyer could escape the rule by asking someone else to make the approach, the ban would bind only lawyers careless enough to do it personally. The facts that decide the case are that the lawyer arranged the approach and benefits from it. The friend's good intentions, the harmless subject, and the lawyer's own silence change nothing. The records-only investigator in the earlier example involves the same lawyer and the same jurors, and the answer differs because no one approached any juror.

The second clause defines its violation by pointing to the other person's legal rights, so it takes its content from the rest of the law.²² Each new way of gathering evidence has to be checked against whatever law protects the person on the receiving end. Secret recording is the older test, and the clause applies to it directly in states where the law gives a person a right against being recorded without consent. A friend request to an adverse witness is the newer test, and there the main objection comes from the rules against deception and not from this clause. The two sources of objection need to be kept apart.

Whether a lawyer may record a conversation without telling the other participant depends on the state. Some states make it a crime to record a telephone conversation without the other party's consent or a prior court order.²³ In such a state the person on the line holds a legal right not to be recorded, so a lawyer who secretly tapes the call has obtained evidence by a method that violates that right, and the second clause is satisfied. The value of the recording does not rescue the method, because the clause asks how the evidence was obtained and never why the lawyer wanted it. Where no such prohibition exists, the recording infringes no legal right of the other person, and the clause has nothing to catch. The first question on an exam stem about a taped call is therefore where the call took place and what that state's law says about recording without consent.

That last qualification matters, because a lawful method is not automatically one a lawyer should use. A New York City bar ethics committee has cautioned that legality does not by itself make a practice ethical. It reasoned that no societal good comes from routinely recording conversations in secret, that the potential for harm is considerable, and that undisclosed taping as a routine practice is therefore impermissible.²⁴ The committee still allowed that circumstances exist in which a lawyer may tape without disclosure, and it told lawyers to be extremely reluctant and to ask whether the general public would see the conduct as fair and honorable if it became known.²⁵ The harm is easy to see: if lawyers taped as a matter of course, witnesses could no longer assume that only the person speaking to them was listening.

The committee's view is stricter than the second clause, which is satisfied only when a legal right is infringed, and it is persuasive guidance from one committee and not a holding on the Model Rule. In a state where the taping is lawful, the place it gets a second look is the general prohibition on dishonesty. Most states have a rule against conduct involving dishonesty, fraud, deceit, or misrepresentation, which appears in the Model Rules as Rule 8.4(c).²⁶ An answer about a legal but secret recording should therefore say that the second clause is not violated and then flag the honesty question.

Social media presents the same layering with the emphasis reversed. The explosion in its use has raised new questions about evidence-gathering, and in 2014 the New York State Bar Association issued Social Media Ethics Guidelines, whose Guideline 4 is titled “Review and Use of Evidence from Social Media.”²⁷ A bar committee has reasoned that a friend request to an adverse witness, sent without revealing that the new “friend” acts for an adversary's lawyer, is deceptive because the witness cannot know who is behind it.²⁸ That objection rests on the witness deciding on a false picture of who is asking. It depends on the concealment and requires no showing that a legal right of the witness was infringed, so the deception rules, and not the second clause of Rule 4.4(a), are the main source of the objection. The opinion is also persuasive authority from one committee, and other jurisdictions may analyze the practice differently.

A request sent openly, in which the investigator names the lawyer and the case and asks for access, leaves the employee an informed choice, and the rationale that rested on the target not knowing falls away. The stronger exam answers separate the two inquiries. They ask first whether the method broke a law protecting the person, as an unlawful recording does. They then ask whether the method depended on the other person's ignorance of who was behind it, which is the deception question.