If your matrimonial client advises you that she uncovered proof that her husband has been unfaithful while she was snooping through his e-mail on the family computer, can you use her e-discovery? An attorney must consider whether a client's action in obtaining such e-mails was illegal or violated the other party's right to privacy in determining whether to use this discovery.

The Legal Intelligencer addresses this issue in Can Lawyers Use Clients' E-Discoveries?  The article examines the Rules of Professional Conduct that are implicated by review of an opposing party's e-mails, including Rule 4.4(b) (Respect for Rights of Third Persons), Rule 3.3 (Candor Toward the Tribunal), and Rule 4.1 (Truthfulness in Statements to Others). Also considered is the impact of the Electronic Communications and Privacy Act. The piece also imparts this piece of wisdom from Patricia T. Brennan, a matrimonial lawyer in Chester County, Pennsylvania, who advises clients not to access any private information on the family computer that the client did not have access to before the separation. She further strongly discourages clients "from taking steps that will inflame passions and make settlement less likely" or that will diminish the client's credibility before the court. Considering the likelihood that clients will resort to self-help in looking for a "smoking gun" in email communications, this article is good reading for any practitioner.