These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Analyzing a series of hypotheticals in which a lawyer receives documents about an adversary that might be useful, the Bar explains that: lawyers may not direct clients to obtain evidence via a method that the lawyers themselves may not engage in; determining whether lawyers must return documents that their clients have removed from the client’s employer’s office depends on a number of factors, including the client’s authorization to handle the documents and the absence or presence of privileged communications in the documents; although the ABA has changed the Model Rules to replace a “return unread” policy with a notice requirement in the case of inadvertent transmission of privileged communications, Virginia has not changed its rules -- so under LEO 1702 lawyers should return unread an adversary’s privileged documents given to the lawyer by clients, even if the client “had the documents as part of his employment”; lawyers are not required to notify the opposing party of such receipt of privileged documents if a whistleblower statute permits the lawyer to refrain from providing notice; an additional exception to the “return unread and provide notice" rule applies if the client/employee made a copy of the employer’s documents rather than took originals; LEO 1702 applies only to documents containing privileged communications of an adversary -- thus, lawyers may review and use such documents as long as the lawyer has not obtained the documents through the use of methods “that violate the legal rights of a third person under Rule 4.4"; determining whether Rule 4.4 would prohibit the lawyer’s use of the documents “depends on whether the documents are originals or copies, whether any litigation is foreseen, how the employee acquired the materials, and their relevancy to the potential litigation”; lawyers should remember that stolen documents might amount to “fruits or instrumentalities of a crime” and thus have to be turned over to law enforcement authorities; all of these rules would not prohibit government lawyers from engaging in the collection of documents that is “part of the lawful operation” of a U.S. Attorney’s investigation.

Copyright 2000, Thomas E. Spahn