Rule 4.4. Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a writing that, on its face, appears to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear that the writing was not intended for the receiving lawyer, shall refrain from examining the writing, promptly notify the sending lawyer, and return the writing.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since.

Paragraph (a) of this rule is identical to ABA Model Rule of Professional Conduct 4.4(a) (2002).

Paragraph (b) of this rule departs significantly from ABA Model Rule 4.4(b). In contrast to the model rule–which requires only that the lawyer who receives an inadvertently-sent document notify the sender of that fact–this rule requires a lawyer not only to notify the sender of receipt, but also to refrain from examining the writing and to return it to the sender. See Model Rules of Prof’l Conduct Rule 4.4(b).[1] A 2012 amendment to the model rule also inserted the term “electronically stored information” in addition to “document,” although this change is likely not substantive given that the term “document” should already include “electronically stored information.”

Comments to ABA Model Rule 4.4

[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

[2] Paragraph (b) recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.

[3] Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

Annotations

Generally

This rule prohibits lawyers from engaging in conduct intended purely to harass third persons. See La. Rules of Prof’l Conduct R. 4.4(a) (2004); Restatement (Third) of the Law Governing Lawyers § 106 (2000) (prohibiting a lawyer from using “means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that are prohibited by law”). Courts have used this rule to sanction lawyers for conduct arising out of litigation and arising out of nonlitigation matters. See In re Cook, 32 So.2d 669 (La. 2006) (suspending a lawyer for three years for “tirelessly” pursuing a motion to recuse the judge in her clients’ case, thereby causing the defendants to accrue extra expenses); see also In re Humphrey, 15 So. 3d 960 (La. 2009) (disbarring lawyer for, among other things, misrepresenting her client’s (also the lawyer’s sister) marital residence to obtain a temporary restraining order against her client’s husband, thereby causing the husband to be evicted from his office without cause, and severely damaging his business). ABA Annotated Model Rules of Prof’l Conduct at 437-42 (5th ed. 2003). At least one court has applied Rule 4.4 to a lawyer’s internet postings. See Marceaux v. Lafayette City–Parish Consol. Gov’t, No. 12-cv-1532, 2012 WL 4194521, at *8 (W.D. La. Sep. 19, 2012) (ordering plaintiff’s to take down their website that contained comments and inappropriate information about Lafayette police department). Furthermore, courts have sanctioned lawyers under this rule for conduct directed at opposing counsel, ABA Annotated Model Rules of Prof’l Conduct at 437, and witnesses, id. at 438; see also In re Wells, 36 So. 3d 198, 205-08 (La. 2010) (lawyer’s filing of vindictive personal suit against opposing lawyer violated Rule 4.4) Note that a lawyer does not violate this rule if the lawyer has any “substantial purpose other than to embarrass, delay, or burden” the third person who is the target of the lawyer’s actions. La. Rules of Prof’l Conduct Rule 4.4(a) (2004). See In re Mincilier, 74 So. 3d 687, 693 (La. 2011) (lawyer did not violate Rule 4.4 by repeatedly asserting RICO claims despite previous dismissals because he was mainly motivated by the best interest of the client).

Misdirected Communications

Paragraph (b) of this rule mandates the return of misdirected communications. Although a lawyer must comply with the letter and spirit of this rule by returning the original and all copies of the communication, it is not impermissible for the lawyer to thereafter file an appropriate pleading or motion in an effort to recover the document under any controlling principles of substantive, evidentiary or procedural law.

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s abuse of the legal process: disbarment, when the lawyer knowingly violates a court rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding; suspension, when the lawyer knows that he is violating a court rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding; reprimand, when the lawyer negligently fails to comply with a court rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a court proceeding; admonition, when the lawyer engages in an isolated instance of negligence in complying with a court rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.2 (1992) (Abuse of Legal Process); id. stds. 6.21-6.24.

Notes

This page was updated on August 5, 2013.

 

 



[1] In 2002, the ABA Ethics 2000 Commission noted that numerous inquiries have been directed to ethics committees regarding the proper course of conduct for a lawyer who receives a fax or other document from opposing counsel that was not intended for the receiving lawyer. ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-368 advised that the receiving lawyer is obligated to refrain from examining the materials, to notify the sending lawyer and to abide by that lawyer’s instructions. The Commission noted, however, that Opinion 92-368 had been criticized, in part because there is no provision of the Model Rules directly on point. The Commission decided that this Rule should require only that the lawyer notify the sender when the lawyer knows or reasonably should know that material was inadvertently sent, thus permitting the sending lawyer to take whatever steps might be necessary or available to protect the interests of the sending lawyer’s client. See ABA Ethics 2000 Commission Revision Notes to Model Rule 4.4(b) (2002). The Louisiana Supreme Court, on recommendation of the LSBA Ethics 2000 Committee, took a different approach in paragraph (b) of this rule.