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John Gaal's Ethics Corner
Q: I recently received an electronic version of a document from my opponent. It is my understanding that there is a way to “look behind” the visible document sent to me, to discover earlier versions of the document that may have been drafted. This “look-behind” may also reveal who else was sent the document for review, as well as any comments they may have made regarding the document. It seems to me that since my opponent chose to give me the document in this electronic form, it is okay for me to try to discover whatever other information it contains. Is that correct?
A: The New York State Bar Association Committee on Professional Ethics recently addressed this very issue, and concluded that the answer is no, it is not permissible to do so. Formal Opinion 749(2002) concludes that using technology to examine electronically received communications from an adversary (or electronically “bugging” and tracing communications sent to an adversary to see where else they are sent) is a violation of the Code of Professional Responsibility because it may lead to discovery of confidences and secrets of your adversary's client. This is believed to be the first, and only, ethics opinion on this subject.
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