Question: I am in a custody case in Virginia. My child’s father and I both have lawyers and there is a Guardian ad litem involved. I got a letter from the other attorney that my attorney forwarded to me, stating that they were withdrawing from the case. I asked my attorney if she knew why and she said yes, but that she couldn’t tell me because someone accidentally sent a letter to her that she was not supposed to see. She says she can’t tell me because she would get in trouble. Can she legally keep that information from me? What if it is information that might help me in my future case against my child’s father? Will it be in the court’s file? Can I get access to this letter some other way? Help!
Gosh – I hate this situation for you, but I am happy to answer your question. The truth is that your attorney is definitely not legally required to disclose this information for you and for her to do so would actually be a breach of our ethical rules of conduct.
Every state has its own ethical rules and Virginia is no exception. You can see our Rules of Professional Conduct – the ones that apply to all Virginia-licensed attorneys, here : https://vsb.org/Site/Site/about/rules-regulations/rpc-part6-sec2.aspx.
The relevant rule in this case is Rule 4.4(b), which states as follows:
a. ” In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
- “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information is privileged and was inadvertently sent shall immediately terminate review or use of the document or electronically stored information, promptly notify the sender, and abide by the sender’s instructions to return or destroy the document or electronically stored information.”
If you dig down further into the comments, you see this broken down a little bit more:
“[3] Preservation of lawyer-client confidences is such a vital aspect of the legal system that it is appropriate to require that lawyers not take advantage of a mistake or inadvertent disclosure by opposing counsel to gain an undue advantage. See LEO 1702. This means that the lawyer is prohibited from informing the lawyer’s client of relevant, though inadvertently disclosed, information, and that the lawyer is prevented from using information that is of great significance to the client’s case. In such cases, paragraph (b) overrides the lawyer’s communication duty under Rule 1.4. As stated in Comment [1], diligent representation of the client’s interests does not authorize or warrant intrusions into privileged communications. “
You can read into it a bit more, including all of the comments, if you’re not sure – but I don’t think there’s any question that your attorney is acting ethically by refusing to provide this information to you. The rule is clear that, even if it would benefit your case, if she has received information that was privileged in error, she cannot provide it. To do so would potentially risk disciplinary action on her part.
The truth is, everyone makes mistakes. And, in this high tech day and age, mistakes happen probably even more than ever. It might have been hard, once upon a time, to physically mail a letter to the wrong person, but it isn’t hard, unfortunately, to accidentally email the wrong person. It happens. And it could happen to you, too.
We go to great lengths to protect our clients from mistakes like these. In fact, in every email we send, we use the following disclosure:
The information contained in this electronic message is legally privileged and confidential under applicable law, and it is intended only for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying or disclosure of this communication is strictly prohibited. If you have received this communication in error, please notify Hofheimer Family Law Firm at 757.425.5200 or by return e-mail to office@hoflaw.com and purge the communication immediately without making any copy or distribution.
I know – it seems unfair. Especially because you could, maybe, really, really use this information.
And, to answer your other questions, it is not going to be in the court’s file. Nor will the GAL provide it to you, even assuming she received the transmission in question. The same ethical rules apply to her as well.
I’m a little tempted to say that the worst thing your attorney did was make you aware that she had this information; now, it’s going to taunt you and make you feel like your attorney is unreasonably withholding information from you. If I were her, I would make the same decision with respect to disclosing the actual information. I’m not sure whether I would have admitted to having it, especially because of the unease this has created for you. Obviously, you could fire your attorney or get a second (or even third, since mine is maybe a second) opinion, if you believe your relationship is broken past the point of recovery.
Thanks for the question, though I’m sorry I couldn’t give you a better answer. For more information, to request a copy of our child custody book for Virginia moms, or to learn how to represent yourself in a custody case at our Custody Bootcamp for Moms seminar, visit our website at hoflaw.com.