Professionals look for ways to gain an edge over their competition. Taking extra time to prepare, investigate claims, and anticipate an adversary’s strategy can often mean the difference between success and failure. However, professionals must ensure that their attempts to gain a tactical advantage do not run afoul of ethics rules. When professionals cross the line, they not only jeopardize their clients’ interests, but also put themselves at risk of litigation or disciplinary action. Some lines are clearer than others. For example, one firm recently learned that it is improper to hack into an adversaries’ files to gain a strategic edge.
This lesson was recently brought to the forefront in a worker’s compensation dispute between two California law firms. During the litigation, one firm discovered that the adversary law firm had hacked into a third-party computer network and illegally downloaded confidential client information. Specifically, the firm allegedly hacked into a data storage company’s site which held information for the law firm, and obtained over 2,000 case materials, including privileged documents. The firm then used the compromised documents to assist with a pending motion.
When the firm discovered the alleged data breach, it filed a complaint alleging invasion of privacy, trade libel, violation of California’s Computer Crime Law, and violation of the business and professional code, among other claims. The defending law firm moved to dismiss the claims. After hearing argument, the presiding judge stated in a preliminary hearing that she would likely allow the plaintiff firm to proceed with its allegations and that she would overrule the defending firm’s motion to dismiss.
The California law firm’s alleged intentional act of accessing confidential files to gain a tactical advantage presents a clear case of misconduct. The ethical obligations of receiving confidential information are less clear, however, when the disclosure is done inadvertently. In these cases, a professional who receives a misdirected communication containing confidences or secrets should promptly notify the sender of the disclosure, avoid accessing its contents, and follow the sender’s policy regarding destruction or return of the communication. Improperly using confidential information for tactical advantage can lead to civil litigation, ethics charges, and possible criminal investigation.