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 document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.
COMMENT
[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 documents or electronically stored information that were 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 to an unintended recipient, such as when an email or letter is misaddressed or when a document or electronically stored information is accidentally included in discovery. 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 original document, 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 wrongfully 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 email or other electronic modes of transmission subject to being read or put into readable form. Receipt of electronic information containing “metadata” does not, by itself, mean that the information was inadvertently sent.
[3] Some lawyers may choose to return a document or electronically stored information unread, for example, when the lawyer learns before receiving it 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 or electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.
The Commission's Explanation for the Proposal
Technology has increased the risk that confidential information will be inadvertently disclosed, and Model Rule 4.4(b) addresses one particular ethics issue associated with this risk. Namely, it provides that, if lawyers receive documents that they know or reasonably should know were inadvertently sent to them, they must notify the sender.
The Commission concluded that the word “document” is inadequate to express the various ways in which information can be inadvertently disclosed. For example, confidential information can now be disclosed in emails, flash drives, and data embedded in electronic documents (i.e., metadata). To make clear that the Rule applies to those situations, the Commission is proposing that the word “document” be replaced with a phrase that is commonly used in the context of discovery – “document or electronically stored information.”
In addition to clarifying that Rule 4.4(b) extends to various forms of electronic information, Comment [2] expressly states that metadata is included within the scope of the Rule, at least when the receiving lawyer knows or has reason to believe that the metadata was not intended to be disclosed. The Comment makes clear that the mere existence of metadata in a document does not give rise to a duty under this Rule, but if a lawyer discovers that an electronic document contains confidential metadata, that discovery may implicate the Rule’s reporting requirement.
ABA Formal Opinion 06-442 addressed the related issue of whether lawyers should even be permitted to look at a sending party’s electronic metadata. That opinion concluded that there is no ethical prohibition against doing so. Several state bar association ethics opinions, however, have reached the opposite conclusion and have said that lawyers should typically not be permitted to look at an opposing party’s metadata. Implicit in the Commission’s recommendation is that lawyers will, in fact, be permitted to look at metadata, at least under certain circumstances. For example, even in states that prohibit lawyers from looking at metadata, lawyers are permitted to do so with the opponent’s permission. The Commission’s proposal recognizes that, when reviewing metadata with permission (or otherwise), a lawyer might discover particular metadata that the lawyer knows the sending lawyer did not intend to include. The Commission’s proposed amendments are designed to ensure that, under these circumstances, Rule 4.4(b)’s notification requirement is triggered.
The Commission is also proposing to define the phrase “inadvertently sent.” The phrase is ambiguous and potentially misleading, because (for example) it could be read to exclude information that is intentionally sent, but to the wrong person. To ensure that the purpose of the Rule is clear, the Commission proposes to add the following sentence: “A document or electronically stored information is inadvertently sent when it is accidentally transmitted to an unintended recipient, such as when an email or letter is misaddressed or when a document or electronically stored information is accidentally included in discovery.”