As a Divorce Lawyer, I am frequently faced with issues similar to this opinion. Clients want the upper-hand in their litigation, and sometimes take actions they would not normally take under normal circumstances. There was a Paternity case that came out this past week that stands for the proposition that if the information was stolen, illegally obtained, or obtained under very, very suspicious circumstances not only is it not going to be considered by the trial court but also there is a strong possibility that the Attorney/Firm that used the information will likely be removed from the case. This case also applies to any Family Law case, including issues of Divorce, Child Support, Parenting Plans, or any other litigation involving the family. I often get inquiries from prospective or current clients involved in highly contested Divorce cases or Paternity cases wondering if they can snoop around the other side's computer and use what they found. I know the temptation for my client is there, but it's just not with the aggravation or the penalties that could happen.
In the case of CASTELLANO v. WINTHROP, Fla. 5th DCA District. Case No. 5D09-2798 the Mother sought to have the Appeal's Court review of an order of the trial court disqualifying her counsel/Firm. The disqualification was based on the Firm's receipt, review, and use of respondent, the Father's USB flash drive that contained electronic files including, among other things attorney/client communications, client litigation notes, and attorney work product. The Mother contended that the disqualification order represented a departure from the essential requirements of the law because a less drastic civil remedy was sufficient to address any potential wrongdoing.
The Judge and Appeals court found that the disqualification of the Firm was required because "an informational advantage was obtained." The Mother and the Firm were ordered to return the USB drive and any and all copies that were in their possession or control. The Mother and the Firm were also ordered to remove from their computers all of the Father's confidential and privileged information and to make their computers available for third-party inspection to confirm the deletion of this information -- all at the Firm's expense.
For the benefit of other attorneys facing a similar dilemma, the case notes that the Florida Bar Commission on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue. If the client refuses to consent to disclosure, the attorney must withdraw from further representation. Fla. Bar Prof'l Ethics Comm., Formal Op. 07-1.
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