State Bar Okays “Attorney’s Eyes Only” Discovery Provision
2019 State Bar FEO 7
It’s ethically permissible to agree to a Stipulated Protective Order that contains an “Attorney’s Eyes Only” clause preventing you from disclosing designated parts of the material from anyone else.
But you should do so with caution, and you should make sure your client is okay with it.
That’s according to NC State Bar 2019 Formal Ethics Opinion 7, adopted in January 2020.
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Inquiry: “Lawyer represents Client in a wrongful discharge action and seeks production of discovery related to other employees (including employee personnel files). Due to the sensitivity of the information, opposing counsel agrees to produce the requested material only if Lawyer agrees to a ‘Stipulated Protective Order’ containing an ‘Attorney Eyes Only’ provision, which provides that opposing counsel may designate certain sensitive or highly confidential information as ‘Attorney Eyes Only,’ and discovery materials designated as ‘Attorney Eyes Only’ may not be disclosed to Client.”
“Lawyer reasonably believes that the requested material is necessary for Lawyer to effectively advise and represent Client. Lawyer is concerned that refusal to accept the ‘Attorney Eyes Only’ restriction will cause opposing counsel to object to the discovery request and/or move for a protective order, resulting in delayed production, entry of a protective order for the requested material, or an order denying Lawyer’s request for the material.”
Question: “May Lawyer agree to the Stipulated Protective Order containing the ‘Attorney Eyes Only’ provision?”
Answer: “Yes. Rule 1.2(a)(3) allows a lawyer to ‘exercise his or her professional judgment to waive or fail to assert a right or position of the client.’ Accordingly, a lawyer may agree to receive information under certain restrictions such as an ‘attorney eyes only’ condition if the lawyer determines that doing so is in the client’s best interest and is in accordance with applicable law.”
- Is the restriction appropriate in this specific matter? “If the lawyer concludes that such a restriction is reasonably necessary to obtain relevant materials to effectively represent his or her client, the lawyer can receive the information pursuant to the restrictive conditions, but the lawyer should consider negotiating for the least restrictive disclosure requirement. Nevertheless, the lawyer may rely on his or her professional judgment to receive the information pursuant to an ‘attorney eyes only’ or other limiting agreement. Rule 1.2(a)(3).”
- Proceed with caution. “The use of an ‘attorney eyes only’ disclosure restriction may create a conflict of interest for the lawyer under Rule 1.7(a)(2) in that the lawyer’s representation of the client may be materially limited by the lawyer’s responsibilities to opposing counsel via the disclosure restriction. This is particularly true in a criminal case, where a lawyer’s duties under such an agreement could conflict with the client’s statutory or constitutional rights to receive certain information. In addition, the lawyer must promptly inform his or her client of the discovery agreement. See Rule 1.4.”
- What if you and your client disagree? “If the lawyer and client cannot agree about the means to be used to accomplish the client’s objectives, and the lawyer cannot reach a mutually acceptable resolution with the client, the lawyer may need to withdraw from the representation. Rule 1.2, comment .”
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