Opinion 97-9
(November 1997)

The inquirer represents a physically and neurologically impaired child in a civil suit against a hospital and various medical personnel. The suit claims that the child's injuries are due to the defendants' failure to diagnose a serious heart condition. After the suit was filed, the inquirer received an anonymous letter, which on its face, appears to be written by someone employed by or working at, the defendant hospital. This letter provides information that will be useful for the inquirer to use in handling the pending civil action on behalf of the inquirer's client.

The inquirer asks whether he has any ethical obligation to turn over this letter to the hospital defendant, or any defense counsel.

Pennsylvania Rule of Professional Conduct 3.4 deals with unfairness to opposing party and counsel. Rule 3.4(a) makes it unethical for a lawyer to, "unlawfully...conceal a document or other material having potential evidentiary value." (Emphasis added). Under this rule, failure to disclose the letter could only be considered unethical if the inquirer's concealment of the letter was "unlawful". The question then becomes whether the inquirer has any legal obligation to reveal this information. Absent some affirmative obligation such as an outstanding discovery request, the inquirer has no duty or obligation to reveal to any opposing party information the inquirer learns while representing his client's interests. Thus, mere non-disclosure of this letter is not "unlawful" and cannot be considered unethical. Moreover, in accordance with Rule 1.6a, "A lawyer shall not reveal information relating to representation of a client unless a client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation..." The receipt of the letter and its contents are confidential as provided by Rule 1.6. Therefore, it is the Committee's opinion that the inquirer has no obligation to disclose this letter to any other party absent some specific discovery request to which this document is responsive.

Finally, the Committee notes that to the extent the inquirer tries to ascertain the identity of, and/or communicate further with, the writer of the anonymous letter, the inquirer should be careful that his actions do not violate Pennsylvania Rule of Professional Conduct 4.2. Rule 4.2 prohibits a lawyer from communicating directly with represented parties. As set forth in the comment to the rule, the rule prohibits a lawyer from contacting an employee of an opposing represented party, if that employee has managerial responsibility or if the employee's acts, omissions or statements can bind the corporate defendant. As such, prior to contacting the writer of the letter, the Committee refers the inquirer to Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility Opinion 90-142,  and advises that the inquirer carefully review and act according to the guidelines in that opinion when making such contact.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.