204 Pa. Code r. 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, including electronically stored information, relating to the
representation of the lawyer's client and knows or reasonably should know that
the document, including 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 document, including electronically
stored information, that was mistakenly sent or produced by opposing parties or
their lawyers. A document, including electronically stored information, is
inadvertently sent when it is accidentally transmitted, such as when an email
or letter is misaddressed or a document, including electronically stored
information, is accidentally included with information that was intentionally
transmitted. If a lawyer knows or reasonably should know that such a document,
including 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, including 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, including
electronically stored information, has been waived. Similarly, this Rule does
not address the legal duties of a lawyer who receives a document, including
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, including 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 it that it was inadvertently sent. Where a
lawyer is not required by applicable law to do so, the decision to voluntarily
return such a document or delete electronically stored information is a matter
of professional judgment ordinarily reserved to the lawyer. See Rules
1.2 and
1.4.
Notes
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