There is an interesting legal ethics case out of New York involving Guardian Angels founder Curtis Sliwa (left) and his girlfriend, Queens Borough President Melinda Katz (right). It appears that Sliwa, now a radio host making some $400,000 annually, is in the midst of a messy divorce after being accused of adultery. He has been sending confidential legal communications without realizing that his wife, Mary Sliwa was being blind copied on the messages. Paul Siegert, her lawyer, however, insists that it is the fault of Curtis Sliwa and neither he nor his client had any obligation to let him know of the breach of confidentiality or refrain from reading the confidential communications.
Sliwa discussed the options of pursuing a Manhattan Supreme Court case in the emails. His counsel Alton Abramowitz expressed outrage and charged that “Mr. Siegert had a professional obligation not to read those emails and to advise me that she was intercepting them since at least August 2013.”
In response, Siegert insisted that “These were sent to her voluntarily — by Curtis Sliwa to my client . . . She was blind copied. Curtis just happened to forget.” Many would see an obvious conflict in those two statements. Usually an unknowing act is not viewed as truly voluntary. More inadvertent than voluntary.
What is particularly interesting is that this was precisely what got Sliwa in trouble to begin with. Mary was automatically bcc’d on every email as his office head. She also had the password to his voicemails and discovered messages revealing the long affair between Sliwa and Katz. That makes both adulterers, but it does not appear to be a problem for Katz in her political career or a problem of Sliwa with his arch conservative audience. Sliwa also sought to sharply cut child support for their special needs son, Anthony.
It gets even more bizarre. Mary is reportedly suing to get back child support paid by Sliwa to Katz — who has two children with Curtis Sliwa. The litigation has focused on whether the children were conceived by artificial insemination before the marriage to Mary or whether it was the product of the long affair between the two celebrities.
Now back to the legal ethics issue. Siegert will reportedly be the subject of a motion to disqualify him and to impose a fine on him for his conduct.
The Rules are clear on the obligation of notice and the general rule on not reviewing material known to be sent inadvertently. Here is the conclusions of a formal opinion from the bar in 2004:
This opinion examines the various approaches to these issues and concludes that a lawyer receiving a misdirected communication containing confidences or secrets (1) has obligations to promptly notify the sending attorney, to refrain from review of the communication, and to return or destroy the communication if so requested, but, (2) in limited circumstances, may submit the communication for in camera review by a tribunal, and (3) is not ethically barred from using information gleaned prior to knowing or having reason to know that the communication contains confidences or secrets not intended for the receiving lawyer. However, it is essential as an ethical matter that the receiving attorney promptly notify the sending attorney of the disclosure in order to give the sending attorney a reasonable opportunity to promptly take whatever steps he or she feels are necessary.
Indeed, the bar flagged how this is now a recurring problem with new technology like email and the Internet: “As advances in technology have made communication easier, so too they have made mistakes in transmission of those communications easier as well.” The bar noted that some states only require notification. See, e.g., Maine Prof. Ethics Comm. of the Bd. of Overseers, Opinion 146 (Dec. 9, 1994); Florida Bar Ass’n Comm. on Prof’l Ethics Opinion 93-3 (Feb. 7, 1994). Still others have endorsed alternative obligations, requiring notice and return when the receiving lawyer is aware that the disclosure is inadvertent (as per ABA Opinion 92-368), but requiring only notice (as per Model Rule 4.4(b)) when the receiving lawyer reviews a communication before realizing that its disclosure was inadvertent. See, e.g., Colorado Bar Ass’n Ethics Comm. Opinion 108 (May 20, 2000).
The bar left the possibility of an exception but not on the notice issue and generally requires that counsel not review the material:
we conclude that a receiving lawyer has obligations under the New York Code to notify, return and refrain from review of inadvertent disclosures, particularly when considering the duties of a lawyer not to engage in conduct prejudicial to the administration of justice, to preserve client confidences and secrets and to represent clients with zeal but within the confines of the law. At the same time, we concur with those authorities finding that a blanket proscription on use of inadvertent disclosures in all situations extends too far. Accordingly, we acknowledge that there are limited circumstances where ethical rules alone do not bar use of such information, particularly where, as more specifically set forth below, the receiving attorney has a good faith basis to argue that inadvertent disclosure has resulted in waiver of a privilege or where the receiving attorney has been exposed to confidential information prior to knowing or having reason to know that the communication was misdirected.
The exception is stated as to use rather than notice — leaving a serious problem for Siegert. It does not appear that notice was given. To the contrary, they appear to have knowingly continued to receive the inadvertent emails like manna from heaven, or at least their guardian angel.