Ethics Opinions Every South Carolina Attorney Should Know: Part XV, Using Purloined Evidence

Had I been a member of the South Carolina Supreme Court in June 2008, I would have voted for In Re Wood, 378 S.C. 632, 663 S.E.2d 496 (2008) to be In Re an Anonymous Member of the Bar.  The lesson of Wood is important (which is why I would have voted to publish the opinion) but it also has a there but for the grace of God go I quality, and I would not have singled out an attorney to teach this lesson.

The full story as I understand it: Wood was representing Wife in a marital dissolution case in which Husband had moved out of the marital home.  Mail for Husband from a financial institution was delivered to the home and Wife doesn’t recognize what this mail could be: she isn’t aware of Husband having any business with this financial institution.  She brings this mail to Wood at the emergency hearing and Wood opens it.  They discover that Husband has an account he has kept secret from Wife.  Wood immediately informs the opposing attorney of what he has learned and allows opposing counsel to inspect the records.  He provides these records to the judge at the hearing; meanwhile Husband’s financial declaration fails to list this asset.  The hearing judge seems more upset with the attorney who opened Husband’s mail than the Husband who deliberately omitted this account on his financial declaration and reports attorney to the Office of Disciplinary Counsel.

The Supreme Court found that this attorney’s actions violated South Carolina Professional Conduct Rule 4.4 (a lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender) and Rule 8.4 (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct, to engage in conduct involving dishonesty or to engage in conduct prejudicial to the administration of justice).  I am not sure I agree with this reading of the rules.  The mail Wood opened was not, in my mind “ inadvertently sent” and I am unclear how his acts involved “dishonesty” or “conduct prejudicial to the administration of justice.”  However the Supreme Court makes the rules and, even if one doesn’t agree with their analysis, one ignores these rules at great peril.

It is unclear from Wood whether the public reprimand was for opening Husband’s mail without his consent or whether it was also for using the contents of this purloined mail in court.   In numerous marriages one spouse opens the household bills and bank statements and, prior to this opinion, it would not have occurred to me that it would be a violation of the Rules of Professional Conduct to look at financial records of the other party that my client had obtained by opening the family mail.  Yet a broad reading of Wood is that any use of this purloined mail, even if he did not open it, was a violation of the Rules of Professional Conduct.  Thus, since Wood, I have not used or looked at the opposing party’s records unless my client can show that these records were not obtained by the client opening the other party’s mail or hacking into the other party’s account.

My great sympathy for Wood is that his actions were solely an attempt to be a zealous advocate for his client.  In opening Husband’s mail, he was simply trying to maximize the results for his client at the hearing by making sure Husband was being honest in his financial disclosure.  Every other circumstance I can recall in which an attorney has been disciplined for being overly zealous in his or her representation it has been because that attorney suborned false testimony or altered evidence.  Here Wood was simply trying to show the other party was presenting false evidence.  If the Supreme Court wanted to teach this lesson it could have done so without naming the attorney.

The lesson of Wood: don’t use, or even look at, records of the other party that your client brings you before determining whether your client legally possesses these records.