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Ohio Legal Ethics Narrative
IV. transactions with persons other than clients
Ohio Rule 4.4 is identical to the Model Rule, with one exception: "harass," is added after "embarrass," in division (a).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 4.4(a): DR 7-102(A)(1), 7-106(C)(2), & 7-108(D) & (E).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 4.4(b): None.
- Primary Ohio References: Ohio Rule 4.4(a)
- Background References: ABA Model Rule 4.4(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.104
- Commentary: ALI-LGL § 106, Wolfram § 12.4.4
As noted in Comment , while the interests of a lawyer's client are paramount, responsibility to the client "does not imply that a lawyer may disregard the rights of third persons." Rule 4.4 cmt. . Thus, Ohio Rule 4.4(a) prohibits a lawyer from using
means that have no substantial purpose other than to embarrass, harass, delay, or burden a third person, or [from using] methods of obtaining evidence that violate the legal rights of such a person.
The Rule addresses two concerns. The first, applicable in any setting, prohibits engaging in certain harmful conduct directed at third persons. The second is tied to evidence gathering and prohibits the use of methods that would violate the legal rights of the third person. See Rule 4.4 cmt. . The former turns on the purpose of the conduct; the latter turns on whether the means used violated legal rights of the third party. See ABA, Annotated Model Rules of Professional Conduct 418-19 (6th ed. 2007) (commentary) (discussing, as within prohibition against obtaining evidence by means that violate rights of third persons, eliciting confidential information from others and covert information gathering by surreptitious copying of opposing counsel's evidentiary documents). The ethics opinions cited by the ABA all arise in a litigation setting, but this “obtaining evidence” portion of Rule 4.4(a) is probably not so limited. See Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics, The Lawyer’s Deskbook on Professional Responsibility § 4.4-2(a), at 894 (2008-09). The authors see the standard as applying to “information” and evidence gathering, not only in litigation, but also in anticipated litigation, in internal corporate investigations, and in transactional work where one side is trying to obtain information about participants on the other side of the table. The internal-corporate-investigation aspect (specifically the use of private investigators in the Hewlett-Packard affair) is examined in Carol K. Metz, Do You Know What Your PI Is Doing? Cleve B.J., Apr. 2007, at 14.
The Rule 4.4(a) prohibition also includes "unwarranted intrusions into privileged relationships, such as the client-lawyer relationship." Ohio Rule 4.4 cmt. .
There is one Ohio ethics opinion, decided under the Code, that deals with the obtaining-evidence issue, Bd. of Comm'rs on Grievances & Discipline Op. 97-3, 1997 Ohio Griev. Discip. LEXIS 6 (June 13, 1997). In Opinion 97-3 the Board opined that a lawyer's surreptitious recording of conversations with clients, witnesses, opposing parties, opposing counsel, or others, without their notification or consent, may violate DR 1-102(A)(4). The opinion recognizes exceptions to the ban on surreptitious recording, including lawful criminal-law enforcement activity, criminal-defense representation activity undertaken to protect the constitutional rights of a criminal defendant, and other extraordinary circumstances exception (which might include attorneys' needs to defend themselves or their clients against wrongdoing by another)." Id. at *7-8. Note that these exceptions are, at least in part, recognized under the Rules in Ohio Rule 8.4 cmt. [2A], discussed in section 8.4:400 at "In general." At least two disciplinary cases under the Code involved secret taping by a lawyer. The first is Office of Disciplinary Counsel v. Watson, 95 Ohio St.3d 364, 768 N.E.2d 617 (2002), in which the lawyer was found to have violated former DR 1-102(A)(4) by surreptitiously recording conversations with his client's son and the son's attorney. Opinion 97-3 was not cited. In the second case, a former prosecuting attorney secretly videotaped his meeting with Office of Disciplinary Counsel investigators who were pursuing allegations of unethical conduct filed against the respondent. Ohio State Bar Ass'n v. Stern, 103 Ohio St.3d 491, 2004 Ohio 5464, 817 N.E.2d 14 (acknowledging Opinion 97-3, and "fully agree[ing] with the proposition that attorneys generally should not employ surreptitious taping in the course of their legal representation," id. at para. 21, but declining to use it and its exceptions as "definitive guide" in deciding case at bar, which presented "unique circumstances," resolution of which (dismissal of charges) was expressly limited by Court "exclusively" to situation presented). The Stern case is further discussed in section 8.4:400 at "Misconduct in the judicial process."
Note as well that the Statement on Professionalism, issued by the Supreme Court in February 1997, contains aspirational statements urging lawyers to be courteous and civil in their dealings with other lawyers, their clients, and the courts and their staffs. It is set forth in full as an appendix to the Rules for the Government of the Bar at Gov Bar R App. V.
Rule 4.4(a) is in some respects analogous to former OH DR 7-102(A)(1), but there are important differences. Thus, while 7-102(A)(1) prohibited a lawyer from taking action on behalf of a client when the lawyer knows or it is "obvious" that the action is taken merely to harass or maliciously injure another, the Rule speaks of actions "having no substantial purpose other than to embarrass, harass," etc. This standard is purely objective, rather than subjective/objective, as was 7-102(A)(1). Further, Rule 4.4(a) can be violated even if there are other purposes for the conduct, so long as those purposes are not "substantial"; under 7-102(A)(1), the violation was limited to action taken "merely" to harass or injure another. The case law dealing with the harassment aspect of the former disciplinary rule is collected in this section below; improper treatment of a witness is discussed in the next section, 4.4:210. Finally, the standards differ in their definitions of harmful conduct directed at third persons. The former rule focused upon actions taken merely "to harass or maliciously injure" a third party, whereas Rule 4.4(a) provides a more extensive list of improper purposes -- "embarrass, harass, delay, or burden." This difference, however, may be of little import. Each new item in the expanded list might fall within the malicious injury category under the former rule and any other type of malicious injury under the former rule might be a "burden" under the new one. (The addition of "harass" to the Model Rule list is a continuation of the harassment language contained in the analogous former disciplinary rules, DR 7-102(A) and 7-108(D) & (E). See the Ohio Code Comparison to Rule 4.4.)
Case law under former OH DR 7-102(A)(1): In some instances under the former OHCPR, the harassing misconduct was clear. Bringing a baseless civil suit against another, in retaliation for defendant's having filed a grievance against respondent, fell into this category and violated OH DR 7-102(A)(1), among other provisions. Columbus Bar Ass'n v. Elsass, 86 Ohio St.3d 195, 713 N.E.2d 421 (1999). Accord Cuyahoga County Bar Ass'n v. Chandler, 81 Ohio St.3d 491, 692 N.E.2d 568 (1998) (sanctions imposed on lawyer who sued grievant lawyer and relator bar association and its counsel in retaliation for being charged with disciplinary violation). Similarly, filing a disciplinary grievance against opposing counsel simply to gain an advantage in litigation violated former 7-102(A)(1). Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993).
Repeated filing of malicious and harassing lawsuits by an attorney against numerous defendants also violated this rule. Office of Disciplinary Counsel v. Pollock, 100 Ohio St.3d 280, 2003 Ohio 5752, 798 N.E.2d 594 (20 meritless state and federal lawsuits filed against an array of defendants; characterized as "personal crusade," "blind determination to ruin those he seemed to consider his clients' oppressors," "'character assassination,'" id. at paras. 46, 48); Mahoning County Bar Ass'n v. Cregan, 69 Ohio St.3d 550, 634 N.E.2d 1005 (1994), as did a series of unfounded lawsuits against a single defendant in Cleveland Bar Ass’n v. Mitchell, 118 Ohio St.3d 98, 2008 Ohio 1822, 886 N.E.2d 222. Likewise, a lawyer who filed thirteen "unwarranted" affidavits of prejudice and motions to disqualify judges and a referee involved in the litigation, including seven affidavits of prejudice and motions to disqualify a judge who had no prior connection to the case and did not know any of the participants, violated former OH DR 7-102(A)(1). Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993). Accord Office of Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003 Ohio 4756, 796 N.E.2d 495 (various unfounded citizen's complaints filed by respondent against numerous public officials, claiming, "in what can only be described as a vendetta," corruption and conspiracy, etc., etc., found to violate 7-102(A)(1), id. at para. 9). See also Columbus Bar Ass'n v. Finneran, 80 Ohio St.3d 428, 687 N.E.2d 405 (1997) (former OH DR 7-102(A)(1) violation for improper delay in repeatedly filing cases, taking voluntary dismissals rather than complying with discovery requests, and then refiling those cases -- a tactic often resorted to several times in the same case, all in the hope of obtaining acceptable settlement offers). The rule also could be violated if a lawyer filed separate and multiplicitous lawsuits in representing a client on a matter in which the issues involved could be resolved in pending litigation. State ex rel. Hill v. Niehaus, 68 Ohio St.3d 507, 628 N.E.2d 1376 (1994) (citing, inter alia, former OH DR 7-102(A)(1) & (2) in support of lawyer's obligation not to engage in such conduct).
But a pattern and practice of malicious or harassing conduct need not be shown. For example, a lawyer who, after a client obtained judgment on cognovit notes signed by the lawyer in the client's favor, filed a lawsuit against the client, the attorney who confessed judgment on the notes, and several judges, was sanctioned under former OH DR 7-102(A)(1). Office of Disciplinary Counsel v. Meros, 83 Ohio St. 3d 222, 699 N.E.2d 458 (1998). Accord Akron Bar Ass’n v. Catanzarite, 119 Ohio St.3d 313, 2008 Ohio 4063, 893 N.E.2d 835 (filing action against former prospective clients for fees “to exact punishment for what he perceived to be an attempt to obtain free legal advice,” id. at para. 17, violated DR 7-102(A)(1)); Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426 (filing groundless fraud claim against former client violated 7-102(A)(1)). And the filing of a $5,600,000 counterclaim in response to a claim brought in small claims court was violative of this rule. Office of Disciplinary Counsel v. Cox, 58 Ohio St.3d 124, 568 N.E.2d 1219 (1991).
The language of the former rule made clear that filing a lawsuit was not a requisite for violation if the lawyer "assert[ed] a position . . . or [took] other action" that would harass or maliciously injure another. Thus, in Butler County Bar Ass'n v. Foster, 99 Ohio St.3d 491, 2003 Ohio 4130, 794 N.E.2d 26, respondent was sanctioned under former OH DR 7-102(A)(1) for directing threatening and otherwise unprofessional e-mail and correspondence to the brother of respondent's pro se opponent during antagonistic collection proceedings. This would certainly seem to be the case as well under the "means" language of Rule 4.4(a). And see Cuyahoga Bar Ass'n v. Wise, 108 Ohio St.3d 164, 2006 Ohio 550, 842 N.E.2d 35, where the respondent was found to have violated DR 7-102(A)(1) by making a harassing telephone call to the Cleveland Police Department, the employer of the party on the opposite side of a child-custody dispute. In rejecting respondent's claim that "all he intended to do when he called the aunt's employer on January 30 was to find out whether she was at work," the Court stated as follows:
But respondent did not simply ask whether the aunt was on duty; he held on through several transfers to reach the aunt's supervisor and proceeded to report the aunt's personal troubles [regarding the custody award that had gone against her]. Respondent then exacerbated the situation by suggesting that the aunt was involved in a kidnapping. Thus, we defer to the panel's determination that respondent's communications with the aunt's employer violated DR 7-102(A)(1).
Id. at ¶ 26 (bracketed material added). Respondent in Akron Bar Ass'n v. Holder, 105 Ohio St.3d 443, 2005 Ohio 2695, 828 N.E.2d 621, was found to have violated 7-102(A)(1) for his attempts to "intimidate" a former client by demanding that he cooperate with the United States Justice Department's trustee in an ongoing bankruptcy, by referring to the Chapter 11 proceedings as "pending" before the DOJ, and by fabricating DOJ's supposed concern about matters in which the former client was involved.
The conduct in all of these disciplinary rules decisions occurred against the backdrop of litigation, even though the conduct was not in the litigation itself. Inasmuch as this aspect of Rule 4.4(a) does not implicate evidence gathering but rather is limited only by the language "[i]n representing a client," it would appear that lawyer conduct violative of the "embarrass, harass, delay, or burden" portion of the Rule could occur in other contexts as well, such as contract negotiations.
As with most infractions of the former OHCPR, sanctions for violating OH DR 7-102(A)(1) varied from public reprimand to permanent disbarment, depending on the severity of the violation and on the existence of mitigating or aggravating circumstances. For example, an attorney sanctioned for filing two frivolous lawsuits received only a public reprimand in Office of Disciplinary Counsel v. Maniscalco, 68 Ohio St.3d 483, 628 N.E.2d 1357 (1994). In contrast, an attorney who filed multiple frivolous affidavits of prejudice, including seven against a visiting judge having no prior connection with the case, was disbarred. Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993).
The respondent in Stark County Bar Ass'n v. Ake, 111 Ohio St.3d 266, 2006 Ohio 5704, 855 N.E.2d 1206, was given a stayed six-month suspension on rather unusual facts. Ake was found to have violated former DR 7-102(A)(1), among other provisions, for deliberately violating court orders during an acrimonious dissolution-of-marriage proceeding at a time when Ake was representing himself. Even though the Court recognized that such conduct generally calls for an actual suspension under ABA standard for Imposing Lawyer Sanctions 6.22 (1992), mitigating circumstances and the Court's conviction that respondent "would not disobey a court order in any situation other than the charged atmosphere of ending his own marriage," 111 Ohio St.3d 266, at para. 46, caused it to accept the Board's recommendation of a stayed suspension. Chief Justice Moyer, in writing also for two other justices, dissented as to the sanction. Invoking former DR 7-106(A) (see now Rule 3.4(c)), a violation of which was neither found nor apparently charged, the Chief Justice argued that the "Rule could not be more clear: a lawyer may not violate a court order," id. at para. 49, and that the Court's precedent called for a more severe sanction. The dissent would have imposed an actual six-month suspension.
Harassing and malicious conduct is regulated outside the disciplinary process through several provisions, including OH Civ R 11, OH App R 23, SCt R XIV(5), and ORC 2323.51 (as to all of which see section 3.1:300), actions for malicious prosecution and abuse of process (see section 3.1:400), and the courts' exercise of the contempt power (see sections 3.1:500 and 3.5:400). Imposition of such sanctions has been used to support a disciplinary violation. Office of Disciplinary Counsel v. Manogg, 74 Ohio St.3d 213, 658 N.E.2d 257 (1996) (judge's final order sanctioning attorney under ORC 2323.51 and OH Civ R 11, subsequent appellate opinion in the action, and judge's testimony used to establish OH DR 7-102(A)(1) violation); see Columbus Bar Ass'n v. King, 95 Ohio St.3d 93, 766 N.E.2d 131 (2002) (numerous violations during probationary period noted, including imposition of sanctions against respondent under OH Civ R 11 for pursuing action despite client's acknowledgment that she had no claim; one-year suspension imposed). [Note that the "vexatious litigator" statute, ORC 2323.52, enacted in 1997, applies only to a "party" in a civil action who habitually and unreasonably engages in, inter alia, conduct serving only to harass or maliciously injure another party, or conduct unwarranted by existing law; the statute expressly excludes lawyers from its reach, unless the lawyer is proceeding pro se. See ORC 2323.52(A)(2)-(3), (D)(2). See also S Ct R XIV(5)(B) (added by amendment effective 7/1/04), the Supreme Court's similar response to the vexatious litigator problem, which also is directed at "a party."]
One controversial issue generated by the new technology is whether it is ethical to use various methods of covert information gathering, such as extracting metadata embedded in documents received from the other side, surreptitiously using at deposition software that purports to analyze speech patterns for truthfulness, or, more old-fashioned, surreptitiously copying opposing counsel's documents. While there are no cases in Ohio of which we are aware, nationally there are ethics opinions that condemn all of these practices, although the opinions are divided on the metadata issue. See generally ABA, Annotated Model Rules of Professional Conduct 418-19 (6th ed. 2007) (commentary); Matthew Romano & Christopher J. Caryl, Mining for Metadata: Is It Ethical to Search for Information Protected by the Attorney-Client Privilege?, Clev. Metro. B.J., June 2008, at 12; Jason Krause, Metadata Minefield, ABAJ, Apr. 2007, at 32. While both of the bar journal articles focus on MR 4.4(b), the metadata issue appears to us to be a Rule 4.4(a) issue as well, as possibly implicating the use of "methods of obtaining evidence that violate the legal rights of . . . a [third] person." The gist of ABA Formal Op. 06-442 (Aug. 5, 2006), upon which Mr. Krause's article is based, talks in terms of "information inadvertently" sent. But Rule 4.4(b) (both Ohio and MR) deals with "document[s] inadvertently sent." However, as Messrs. Romano and Caryl point out in their article, for purposes of the Rule, “document” includes “e-mail or other electronic modes of transmission subject to being read or put into readable form.” Rule 4.4 cmt. . Does this include metadata? According to Romano and Caryl, “you are left to draw your own conclusions” on that one.
Even if Rule 4.4(b) is applicable to metadata, ABA Op. 06-442 comes down clearly on the side of the recipient, rather than the sender: “The Model Rules . . . do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party.” Id. at 1. Ethics opinions in Colorado, Maryland, and the District of Columbia (unless the recipient has actual knowledge that the information was inadvertently sent) follow the ABA approach. Five jurisdictions (Alabama, Arizona, Florida, Maine, and New York) reject the approach of ABA Opinion 06-442 and find that it is an ethics violation to mine for metadata; the rules most often cited are the state’s equivalent of MR 8.4(c) and (d). Despite these early returns going against the ABA opinion, at least one national commentary is not persuaded: “Although several state ethics opinions and some [unidentified] scholars have worried that data mining of this kind is ‘deceptive,’ the Formal Opinion [06-442] surely states the better view.” 2 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 40.5, at 40-15 (3d ed. Supp. 2008).
Numerous other Rules impact, either directly or indirectly, on the rights and interests of third persons. See, e.g.,
Ohio Rule 1.2(e) (presenting or threatening criminal or disciplinary proceedings against another solely to obtain advantage in a civil action), see section 1.2:900.
Ohio Rule 3.5(a)(1), (a)(3)(ii), (a)(4) (limitations on communications with seated or prospective jurors), see section 3.5:220;
Ohio Rule 3.8(a) (prosecutor's obligation not to charge if institution of criminal action known to be unsupported by probable cause); Ohio Rule 3.8(d) (prosecutor's duty to disclose evidence favorable to the accused), see, respectively, sections 3.8:200 and 3.8:500;
Ohio Rule 4.2 (communicating directly with person known to be represented without consent of that person's lawyer or authorization by law or court order); Ohio Rule 4.3 (refraining from giving legal advice to unrepresented person with interests adverse to lawyer's client, other than advice to secure counsel), see, respectively, sections 4.2:200 and 4.3:200;
Ohio Rule 7.3(a)-(e) (limitations on solicitation of prospective clients), see sections 7.3:200-:400; and
Ohio Rule 8.4(g) (discrimination), see section 8.4:800.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.104 (1996).
Rule 4.4(a) prohibits a lawyer's use of "means that have no substantial purpose other than to embarrass, harass, delay, or burden a third person, or use [of] methods of obtaining evidence that violate the legal rights of such a person." Although the Rule and its comment do not expressly refer to witnesses, it is clear that witnesses are protected "third persons." See ABA, Annotated Model Rules of Professional Conduct 416 (6th ed. 2007) (commentary) ("Abusive treatment of witnesses similarly implicates Rule 4.4."). See also The Task Force's Ohio Code Comparison, noting that Rule 4.4(a) contains elements of former OH DR 7-106(C)(2), which did directly address the witness point (asking questions having no relevance and with intent to degrade the witness). Disciplinary cases under the former rule include Akron Bar Ass’n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio 862, 883 N.E.2d 1046, stressing the intent-to-degrade aspect resulting from “inappropriate” questioning of witnesses (no other detail given), and Office of Disciplinary Counsel v. Donnell, 79 Ohio St.3d 501, 684 N.E.2d 36 (1997), where violation of the rule was predicted on respondent's pursuing on cross-examination irrelevant questions concerning drug abuse and pedophilia.
Using methods of this kind also is regulated in a variety of ways outside the disciplinary system. If the conduct is sufficiently prejudicial, it can justify overturning the result of the tainted proceeding. See, e.g., State v. Tolliver, 16 Ohio App.3d 120, 474 N.E.2d 642 (Cuyahoga 1984) (irrelevant and degrading questioning regarding witness's sex change is prosecutorial misconduct warranting reversal of criminal conviction).
While, as noted, neither Ohio Rule 4.4 nor the Model Rule (or their comments) speak to the specific issue in the heading for this section ("Cross-Examining a Truthful Witness"), the Restatement does, but in terms that seem inconclusive (perhaps because "[d]iscussions of cross-examining a truthful witness are found only in judicial dicta and academic scholarship"). 2 Restatement (Third) of the Law Governing Lawyers § 106, reporter's note to cmt. c (2000). Comment c states the problem, but provides no answers:
A particularly difficult problem is presented when a lawyer has an opportunity to cross-examine a witness with respect to testimony that the lawyer knows to be truthful, including harsh implied criticism of the witness's testimony, character, or capacity for truth-telling. Even if legally permissible, a lawyer would presumably do so only where that would not cause the lawyer to lose credibility with the tribunal or alienate the fact finder.
2 Restatement § 106 cmt. c, at 141.
Hazard and Hodes also treat the matter, but with less reluctance; in their view, tactics such as burdening or embarrassing an adverse witness, if doing so results in it being less likely that the witness will be believed,
do not violate Rule 4.4(a), . . . because there is obviously a "substantial" and legitimate purpose to them. Moreover, it should make no difference that the examining lawyer knows that the witness is telling the truth. Even though cross-examining a truthful witness tends to move a trier of fact away from the truth rather than toward it, the advocate may still point to a "substantial purpose" other than harassing the witness, namely winning the case at hand.
2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 40.3, at 40-5 (3d ed. Supp. 2008) (emphasis in original) (although the authors then go to considerable lengths in exploring whether this should be the rule. See id. at 40-5 to 40-8). All this, however, "does not mean that there are no limits on what can be done":
An intemperate attack upon a witness violates Rule 4.4 and, if it disrupts the tribunal, also violates Rule 3.5(c) [now MR 3.5(d); 3.5(a)(5) in Ohio]. Likewise, deliberately asking improper questions violates Rule 4.4, as well as Rules 3.5(a) [3.5(a)(1) in Ohio] and 3.4(e). Moreover, outrageous trial tactics are "prejudicial to the administration of justice," and may therefore be held to violate Rule 8.4(d).
Id. at 40-8. Hazard and Hodes' examples of conduct that crosses the line themselves indicate the difficulty in determining just where that line is -- what about attacks that are "intemperate" or questions that are "deliberately improper" in order to win the case?
On the truthful-witness issue in the criminal context, compare ABA Standards for Criminal Justice (3d ed. 1991), Standard 3-5.7(b) (prosecution should not use cross-examination to discredit adverse witness known to be telling the truth; limited cross permitted if prosecution believes witness truthful), with Standard 4-7.6(b) (defense counsel's belief or knowledge that witness is truthful does not preclude cross). Accord, as to defense counsel, United States v. Wade, 388 U.S. 218, 257-58 (1967) (White, J., dissenting in part and concurring in part).
- Primary Ohio References: Ohio Rule 4.4(b)
- Background References: ABA Model Rule 4.4(b)
Ohio Rule 4.4(b) is identical to MR 4.4(b), added by the ABA House of Delegates in 2002. Division (b) provides as follows:
A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
Beyond that, whether the lawyer reads the document, or returns it unread, is a matter of professional judgment, unless other law imposes a different duty. Ohio Rule 4.4 cmt. . See infra "Inadvertent disclosure - Waiver implications and court-imposed requirements."
ABA Formal Op. 05-437 (Oct. 1, 2005) is consistent with MR 4.4(b) (as well as its Ohio counterpart); Opinion 05-437 withdraws Formal Opinion 92-368, which had instructed the receiving lawyer to refrain from examining inadvertently sent materials, to notify the sender, and to abide by the sender's instructions; the earlier opinion had further stated that even if the receiving lawyer had examined the materials before discovering they were missent, there was value in protecting the confidentiality that remains – i.e., "disclosure to counsel does not have to result in disclosure to counsel's client." Id. at 4.
In addition to Opinion 05-437, the ABA more recently issued Formal Opinion 06-440 (May 13, 2006), which reconfirms the conclusions of Opinion 05-437. Opinion 06-440 rejects former Opinion 94-382 in its entirety, which dealt with materials known or appearing to be privileged or otherwise confidential, provided by a person not authorized to provide them. Opinion 06-440 expressly states that the "Rule does not require refraining from reviewing the materials or abiding by instructions from the sender." The net results is, under the Rules, irrespective of whether the document was sent inadvertently (Opinion 05-437), or without authorization (Opinion 06-440), the receiving lawyer has no ethics obligations other than those set forth in Rule 4.4(b) – indeed, "if the providing of the materials is not the result of the sender's inadvertence," 4.4(b) does not apply at all, and the receiving lawyer is not required to notify the other party or his lawyer of receipt as a matter of compliance with the Rules. Formal Op. 06-440, at 2.
One aspect of the inadvertently-disclosed-document issue was addressed under the OHCPR by the Board of Commissioners in Opinion 93-11. The Board there opined that, in the context of a public records search prior to litigation, a lawyer who without wrongdoing obtained a copy of an inadvertently disclosed memorandum that appeared to contain privileged information, had no ethical duty to refrain from reading the memo or from sharing the contents with the client. The lawyer did, however, have a duty to notify the source of the document and return a copy upon request. Bd. of Comm'rs on Grievances & Discipline Op. 93-11, 1993 Ohio Griev. Discip. LEXIS 1 (Dec. 3, 1993).
This Board's view is that within the Code, there is no express or implied duty to protect an opposing party's confidences and secrets. Rather, the lawyer's duty under Disciplinary Rule 4-101 is to protect the confidences and secrets of his or her client.
Id. at *3. Presumably, this duty to protect only client "confidences and secrets" under the Code is similarly one-sided under the "information related to the representation" rubric of the Rules.
With respect to the Opinion's advice that the obtaining lawyer had the obligation to both notify the source and return the document on request, Rule 4.4(b) (assuming it applies in the public-records-search situation, and most likely it does) now makes clear that the duty is limited to providing prompt notice to the source. The lawyer is free to return the document if she so chooses, but there is no obligation to do so unless other law requires. See Ohio Rule 4.4 cmt.  (setting forth this "professional judgment" rule). This issue is further discussed in section 8.4:400 at "Misconduct in the judicial process."
Inadvertent disclosure - Waiver implications and court-imposed requirements: While the ethical duty under Ohio Rule 4.4(b) in dealing with inadvertently disclosed documents is limited to mere notification of receipt to the sender, there are also at least one Ohio state case and a number of Ohio federal cases dealing with the inadvertent-disclosure-of-documents issue in the context of whether such conduct constitutes a waiver of the attorney-client or work-product privilege and/or what the duties of the receiving lawyer are. See Miles-McClellan Constr. Co. v. Bd. of Educ., 2006 Ohio 3439, 2006 Ohio App. LEXIS 3366 (Franklin) (hearing must be held at which balancing test applied to determine whether waiver of privilege occurred); Evenflo v. Hantec Agents Ltd., No. 3-:05- CV-346, 2006 U.S. Dist. LEXIS 74684 (S.D. Ohio 2006) (court, in applying balancing test, found that each of the factors favored finding of waiver; sender's motion to compel return of documents denied); Hawkins v. Anheuser-Busch, Inc., No. 2:05- CV-688, 2006 U.S. Dist. LEXIS 40461 (S.D. Ohio 2006) (ordering return of work-product document inadvertently disclosed; balancing test applied; document not to be used by recipient for any purpose); Van Hull v. Marriott Courtyard, 63 F. Supp.2d 840 (N.D. Ohio 1999) (denying defendant's demand that plaintiff produce unredacted copy of previously disclosed privileged information and all other documents containing privileged information on same subject matter); Transp. Equip. Sales Corp. v. BMY Wheeled Vehicles, 930 F. Supp. 1187 (N.D. Ohio 1996) (rejecting argument that inadvertent disclosure of privileged document resulted in general loss of attorney-client privilege; recipient was required, as matter of professional responsibility, to inform sending counsel of receipt and return it without using or disseminating it; court relies on ABA Formal Opinion 92-368, since withdrawn -- see discussion above). These cases are further discussed in sections 1.6:500 and 1.6:750.
Receipt of unauthorized disclosures: A related issue is the lawyer's obligation when he or she receives documents from an unauthorized source. Here the disclosure is not inadvertent, but rather is unauthorized. According to MR 4.4 cmt. , in language omitted from the Ohio analog, "this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person." One presumes this is also the intent of the Ohio Rule 4.4(b), but the drafters chose not to include warnings about what the Rule does not cover. Given the limited scope of MR 4.4(b), the ABA in Formal Op. 06-440 (May 13, 2006), withdrew its earlier opinion (94-382), which dealt with materials known or appearing to be privileged or otherwise confidential, provided by a person not authorized to provide them. Opinion 06-440 expressly states that the "Rule does not require refraining from reviewing the materials or abiding by instructions from the sender." The net result is, irrespective of whether the document was sent inadvertently (Opinion 05-437), or without authorization (Opinion 06-440), the receiving lawyer has no ethics obligations other than those set forth in MR 4.4(b) – indeed, "if the providing of the materials is not the result of the sender's inadvertence," 4.4(b) does not apply at all, and the receiving lawyer is not required to notify the other party or his lawyer of receipt as a matter of compliance with the Rules. Formal Op. 06-440, at 2.
While Ohio Rule 4.4(b) is silent on this matter, that does not mean the lawyer can retain or use documents sent to them from unauthorized sources free of ethical concerns. While other law must be consulted to determine if retention or use of such documents is proper, if it is not, other ethical obligations can be triggered. Receipt and or use of such documents may be seen as conversion, receipt or use of stolen property, or participating in the misappropriation of documents, which might raise Ohio Rule 8.4(b) issues. Ohio Rule 4.4(a)'s admonition not to "use methods of obtaining evidence that violate the legal rights of such a person" may be implicated as well. If the client procured the documents illegally, the lawyer's use of the documents may be seen as assisting a client in illegal activity in violation of Ohio Rule 1.2. Issues as to whether the documents may be used at trial or whether the lawyer will be disqualified for reviewing them also can arise. See generally 1 Restatement (Third) of the Law Governing Lawyers § 60 cmt. m & reporter's note thereto (2000); 30 Judith A. McMorrow & Daniel R. Coquillette, Moore's Federal Practice § 809.03 (3d ed. 2007).