The Ethics Committee and Department of the Law Society provides guidance on ethical issues to all practitioners. Often, they notice particular ethical issues that arise more frequently than others. The following scenarios have been drafted to highlight some current and frequently arising ethical issues.
Q: My client has turned up at my office waving an affidavit that supports allegations in a dispute with their former partner. It appears to have been sworn in relation to unrelated proceedings. The client says they accessed it a few months ago through their opponent’s email account. What should I do?
A: The first issue you might consider is the legality or otherwise of accessing the email account. There are many permutations of this scenario in our electronic age. We are long past the age of simple snail mail and some clients’ propensity to steam it open. The fundamentals are unchanged. If evidence is obtained improperly, you may be unable to rely on it and may have to cease to act for the client. You simply cannot assist your client in wrongdoing or, worse still, be involved in it yourself. You would do well to consider rule 31.3.
The real challenge is working out whether it has been obtained improperly. For instance, what if the parties have given each other access to their respective email accounts, in accordance with the terms of those accounts? What about information posted on Facebook by one party where the other party is still a “friend”? There will be some challenging questions in future about the rights and wrongs of access to online material. However, the rights and wrongs for solicitors remain unchanged throughout.
The second issue to keep in mind is whether your client is entitled to use a document that is linked to other proceedings. For instance, where a document is produced under compulsion in proceedings and not then put into evidence, then generally it cannot be used except for those proceedings.
