Litigation & Advocacy · 10-16% of the exam
14.1.4Witness non-cooperation, threats, and inadvertently sent documents or information (Rule 3.4(f); Rule 4.4(b))
On this page
- Rules 3.4(f); 4.4(a)–(b) — Non-clients, third persons, and inadvertent documents
Rule 3.4(f) permits asking a client's relative, employee, or agent to stay silent only when both conditions are satisfied: the qualifying relationship exists and the lawyer reasonably believes silence won't adversely affect that person. Whether a criminal threat in a civil matter is proper turns on how closely the threatened conduct relates to the civil claim and whether there is a factual and legal basis for it; using a disciplinary-complaint threat to gain advantage in the civil matter is prohibited. Rule 4.4(b) imposes one duty on receiving an inadvertently sent document or electronically stored information (ESI): promptly notify the sender.
Why
A client's relatives, employees, and agents often hold the facts, and they are not the client — a request to stay quiet can cost them something they may not anticipate. Separately, a misdirected file hands one side an advantage the sender did not intend to give, and a receiving lawyer left to improvise would answer to no standard at all.
Plain English
Ask a non-client to stay silent only when the person is a client's relative, employee, or agent and you reasonably believe their interests won't be adversely affected — both, not either. Weigh a criminal-charge threat for civil advantage by how closely the conduct relates to the civil matter and whether there is a factual and legal basis for it; a disciplinary-report threat for advantage is barred.
Don't use means with no substantial purpose other than to embarrass, delay, or burden a third person, and don't use methods of obtaining evidence that violate a third person's legal rights. On a document or electronically stored information (ESI) you know or reasonably should know was sent inadvertently, promptly notify the sender — ESI covers email and other electronic forms, including embedded data, commonly called metadata.
Context. Four points, and the fourth is where the overcorrection happens.
Rule
Rules 3.4(f); 4.4(a)–(b) — Non-clients, third persons, and inadvertent documents
- 3.4(f)
A lawyer shall not request that a person other than a client refrain from voluntarily giving relevant information to another party, unless:
- (1) the person is a relative, employee, or agent of a client AND
- (2) the lawyer reasonably believes the person's interests will not be adversely affected by refraining.
Both conditions required; satisfying one alone isn't sufficient.
- Criminal threats (Rules 8.4/4.4)
Whether a lawyer may threaten to press criminal charges against an adversary to gain advantage in a civil matter is judged under those rules; considerations that run through it include (a) how closely the threatened criminal conduct is related to the civil matter, and (b) whether there is a factual and legal basis for the threat. Neither Rule 4.4(a) nor Rule 8.4(b), (d) or (e) states a test in terms, so read these as considerations rather than a checklist that makes the threat safe. A lawyer may not threaten opposing counsel with a disciplinary report to gain advantage in a civil matter (ABA Formal Opinion 94-383). Genuine reporting of a genuine disciplinary violation through proper channels remains separately permitted and may be required.
- 4.4(a) — General prohibition
A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, and shall not use methods of obtaining evidence that violate a third person's legal rights. A tactic that also meaningfully serves the client's representation survives; the full picture of purpose controls.
- 4.4(b)
If a lawyer receives a document or electronically stored information relating to the representation of a client and knows or reasonably should know it was sent inadvertently, the lawyer shall promptly notify the sender. Comment [2]: "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 creates an obligation only if the receiving lawyer knows or reasonably should know it was inadvertently sent. Duty is notification only; return and destruction are not required. The sender may then seek a protective order or other relief. The "knows or reasonably should know" standard is objective. Comment [2] also says this rule does not address the legal duties of a lawyer who receives a document or ESI the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person — the rule reaches the accident, not the improper acquisition — and Comment [3] makes the decision to return or delete voluntarily, where applicable law does not require it, a matter of professional judgment ordinarily reserved to the lawyer (see Rules 1.2 and 1.4). The rule stops at notification because the two competing instincts — finders-keepers versus hand-it-back — proved irreconcilable; the ABA split the difference and left any further relief to the sender.
Trap
Questions · 2
Q 01ch14-e07
Question 1 of 2 · Rule 4.4(b)
Attorney represented Employer in a wage dispute. Opposing counsel emailed Attorney a spreadsheet of payroll figures the parties had agreed to exchange, and the spreadsheet carried embedded data behind the visible cells. Opening the file, Attorney found that the embedded data held opposing counsel's own notes assessing the weaknesses of the other side's case. The covering email said nothing about the notes, and it was plain from the file that they had been sent by accident. Attorney telephoned opposing counsel the same hour and said what the file contained. No court order or other law addressed the situation. Must Attorney return or delete the file?
Keys 1 to 4 choose.