## Facts

- Joel B. Eisenstein, a Missouri attorney licensed in 1974, represented a husband in a dissolution of marriage case; the wife was represented by Stephanie Jones.
- The husband repeatedly accessed the wife’s personal email account without authorization and obtained (1) current payroll documents and (2) Jones’s emailed list of direct-examination questions prepared for trial.
- In November 2013, the husband provided Eisenstein the payroll documents and the direct-examination questions taken from the email account.
- On the second day of trial (Feb. 11, 2014), Eisenstein provided opposing counsel a stack of exhibits that included her own direct-examination questions, reflecting Eisenstein’s use of those materials in litigation.
- Eisenstein had five prior discipline matters, including admonitions for ex parte communications, a suspension related to a federal misdemeanor tax offense, and admonitions for failing to respond to disciplinary inquiries and failing to disclose material facts to a court.

## Issues

1. Whether Eisenstein violated Missouri Rules of Professional Conduct by using materials obtained through a client’s unauthorized access to the opposing party’s email account, including opposing counsel’s work product.
2. What sanction was appropriate given the nature of the misconduct and Eisenstein’s prior disciplinary history.

## Decision

- The Supreme Court of Missouri, en banc, found that Eisenstein violated Rules 4-3.4(a), 4-4.4(a), 4-8.4(c), and 4-8.4(d) by using illegally obtained evidence, including opposing counsel’s work product.
- The court ordered Eisenstein suspended indefinitely, with no leave to apply for reinstatement for six months.
- The court modified the disciplinary hearing panel’s recommended minimum ineligibility period from twelve months to six months.

## Legal Principles

- A lawyer may not unlawfully obtain or use evidence in a manner that defeats fairness to the opposing party and counsel (Rule 4-3.4(a)).
- A lawyer may not use methods of obtaining evidence that violate the legal rights of third persons, including privacy and confidentiality interests in communications (Rule 4-4.4(a)).
- Using or capitalizing on the fruits of unauthorized access to an opposing party’s confidential communications can constitute professional misconduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 4-8.4(c)).
- Conduct that compromises the integrity of the adversarial process and the protection of confidential communications and attorney work product is conduct prejudicial to the administration of justice (Rule 4-8.4(d)).
- Prior disciplinary history is a significant aggravating factor in determining the level of professional discipline, though the court retains discretion to set a different sanction than a panel recommendation.

## Conclusion

The court disciplined Eisenstein for using materials obtained through his client’s unauthorized access to the opposing party’s email, including opposing counsel’s work product, and imposed an indefinite suspension with a six-month minimum before reinstatement could be sought.


In re Eisenstein, 485 S.W.3d 759 (Mo. 2016)