17.1.2Third Persons and Inadvertently Sent Documents or Information (Rule 4.4)

Quick review — Rule 4.4 (third persons and inadvertently sent documents or information) (taught fully in Chapter 14)

Two prongs, and two notes on how far they reach.

• 4.4(a): a lawyer may not use means with no substantial purpose other than to embarrass, delay, or burden a third person, nor methods of obtaining evidence that violate a third person's legal rights.
• 4.4(b): on receiving a document or ESI the lawyer knows or reasonably should know was inadvertently sent, the lawyer must promptly notify the sender — that is the complete Model Rule duty.
• Return, destruction, and sequestration are not required; privilege-waiver questions go to the court — whether to return or destroy the document is allocated by Comment [3] (Chapter 14).
• The "reasonably should know" standard is objective; misdirected address plus a privilege label puts a reasonable lawyer on notice immediately, and delay of days isn't prompt.

Where the neighboring rules are taught: witness contact and payment under Rule 3.4, ex parte contact with judges under Rule 3.5, and juror contact before, during and after trial are taught fully in Chapter 14; trial publicity and the right of reply under Rule 3.6 in Chapter 15; contact with represented persons and an organization's constituents under Rule 4.2 in Chapter 16; and statements about judges under Rule 8.2 in Chapter 22.