A lawyer, extremely frustrated at opposing counsel’s failure to answer emails and return phone calls, sees opposing counsel’s wife at the mall and says loudly, “Tell your husband to start paying more attention to his cases and less attention to his secretary.”

The client in an acrimonious divorce case brings the lawyer a flash drive containing emails between the spouse and the spouse’s lawyer, the spouse’s accountant, and several of the spouse’s friends.

During the negotiations for the purchase of a business, the lawyer receives an electronic copy of the proposed contract to purchase from opposing counsel. Upon mining for metadata, the lawyer discovers comments between the opposing party and opposing counsel regarding a particularly thorny provision of the contract.

Rules Regarding Obligations to Nonclients

While lawyers have an obligation to represent their clients competently and diligently, they also have professional obligations to nonclients. Some of these obligations are found in SCR 20:4.4, which regulates how lawyers treat “third persons” – everyone other than a client – when representing a client.

SCR 20:4.4 regulates two distinct types of conduct: paragraph (a) prohibits lawyers from engaging in certain bad behaviors, and paragraphs (b) and (c) impose upon lawyers certain obligations when they receive a document or electronically stored information that was inadvertently sent.

SCR 20:4.4(a) states: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a 3rd person, or use methods of obtaining evidence that violate the legal rights of such a person.” The prohibition in paragraph (a) extends to two types of bad behaviors: using tactics designed to embarrass or burden a third person and using methods of obtaining evidence that violate the legal rights of a third person.

Using Tactics Designed to Embarrass or Burden a Third Person

The prohibition against using “means that have no substantial purpose other than to embarrass, delay, or burden” a third person encompasses verbal abuse, threats, and offensive actions. A lawyer’s substantial permissible purpose in engaging in potentially questionable behavior, however, can be a defense only insofar as it justifies the specific behavior. In addition to being disciplined for violating this rule, lawyers also have been sanctioned in court.

In a 2015 Wisconsin disciplinary case, a lawyer was suspended for one year for violating SCR 20:4.4(a) and 8.4(g).¹ The lawyer made “unfounded, scurrilous, vilifying statements and religious slurs directed against the courts generally, and against specific judges, other counsel, appointed officers and third parties,” in a series of 12 documents that were filed in cases before various federal courts.²

In a Puerto Rico case, a lawyer was sanctioned by the court for violating Rule 4.4(a) when he remarked, “You’re not getting menopause, I hope,” to opposing counsel after she complained about the temperature in a room where 16 lawyers were participating in a deposition.³ The offending lawyer insisted that his purpose for making the remark was “out of concern” for opposing counsel’s “medical condition” because future depositions were scheduled to take place in the same room and because he knew “that a hot room is a trigger for hot flashes in women who are going through menopause.”

One of the most common situations is the intentional unauthorized disclosure of information to the lawyer either by a client or by someone with whom the lawyer has no relationship.

The court “unequivocally rejected” the offending lawyer’s explanation. The public nature of the comment combined with the personal and private nature of menopause led the court to conclude that the comment was made to embarrass and was not intended to serve any other purpose.⁴

The court further concluded that the remark’s impropriety was aggravated by its discriminatory nature. “Because menopause occurs only in women, and predominantly in middle-aged women … a comment suggesting that a woman may be menopausal singles her out on the basis of gender and age.”⁵ The court ordered the offending lawyer to pay $1,000 and attend a professionalism course.

Similarly, a lawyer received a 30-day suspension for violating Rule 4.4(a) for stating in a letter to opposing counsel that the opposing party “doesn’t understand what laws and court orders mean … because she’s an illegal alien to begin with.”⁶ The lawyer also sent the letter to the court. The lawyer argued it was legitimate advocacy to connect the mother’s alleged violation of immigration laws with her violation of the father’s court-ordered visitation rights.

The Indiana Supreme Court, while noting the frustration the lawyer must have felt in the circumstances, concluded that “accusing [the mother] of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantial purpose other than to embarrass or burden [the mother].”⁷

In addition to prohibiting verbal abuse, the rule also prohibits threats and intimidation. A lawyer who was defending a medical malpractice case was disqualified and sanctioned nearly $45,000 for trying to intimidate a physician who was an expert witness for the plaintiff.⁸ The lawyer sent a threatening letter to the general counsel of the hospital where the expert witness worked as an emergency room physician. The letter warned the general counsel that although the hospital was not a party to the lawsuit, it could suffer in future malpractice cases if the expert testified in support of the plaintiff’s theory of liability. The lawyer later asked an associate to follow up by sending four letters to the plaintiff’s lawyers demanding that the plaintiff identify a new expert.

The court concluded that the lawyer’s letter to the hospital’s general counsel was a threat sent in bad faith to coerce the doctor “to either change her opinion or to refrain from testifying.”⁹ The court further concluded that there was no legitimate reason for the lawyer’s associate to send the follow-up letters.¹⁰

Another lawyer, who represented a father in a divorce, was suspended for six months without automatic reinstatement for intimidating a school secretary into releasing the children to her and causing the mother great anxiety over the children’s safety by keeping the children for several hours without telling the mother where they were.¹¹ The lawyer argued that she believed she needed to speak privately to the children and that, without her intervention, the children would be abused for years to come.

The court concluded that both of the lawyer’s stated purposes “could have been accomplished by more appropriate and effective means” and that the lawyer’s “actions had no substantial purpose” other than to burden the school secretary and the mother in violation of Rule 4.4(a).¹²

Obtaining Evidence that Violates a Third Person’s Legal Rights

Under SCR 20:4.4(a), a lawyer must not “use methods of obtaining evidence” that violate the legal rights of a third person. ABA Comment [1], which follows SCR 20:4.4, acknowledges that 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.”

For example, an assistant prosecutor and his supervisor violated Rule 4.4(a) by issuing investigative subpoenas that were not issued by a sitting grand jury nor reviewed by any judicial officer and were not connected to any cases before the court.¹³

The New Mexico Supreme Court concluded that the law plainly requires that subpoenas be issued only in connection with existing judicial actions. “A subpoena that issues improperly, but has the guise of authority and carries the threat of punishment, falsely suggests that the recipient is legally required to answer and has therefore lost the right not to respond. This is misleading and unfair, and represents an abuse of the government’s substantial power and responsibility.”

The prohibition against using ‘means that have no substantial purpose other than to embarrass, delay, or burden’ a third person encompasses verbal abuse, threats, and offensive actions.

One of the most common situations is the intentional unauthorized disclosure of information to the lawyer either by a client or by someone with whom the lawyer has no relationship. For example, a lawyer receives from a client or a stranger a document or information that has been stolen. Because the language of the rule prohibits a lawyer from “us[ing] methods of obtaining evidence,” some lawyers have argued that the rule “strongly implies something more than the passive action by an attorney as a mere recipient”¹⁴ of the stolen information is necessary.

However, SCR 20:8.4(a) prohibits a lawyer from violating the rules through the acts of another. Consequently, a lawyer who receives from a client or a stranger a document or electronically stored information that has been stolen violates SCR 20:4.4(a) because the theft, although committed through the act of another, would violate SCR 20:4.4(a) if committed by the lawyer. Even those lawyers who believe that the language of SCR 4.4(a) implies that more than being a mere recipient is necessary acknowledge that SCR 20:8.4(a) “is a plausible mechanism” for concluding that a lawyer who receives stolen documents or information acts unethically because the theft would clearly violate Rule 4.4(a) if committed by the lawyer.¹⁵

Yet SCR 20:4.4(a) “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 inappropriately obtained by the sending person.”¹⁶ Cases involving disqualification and motions in limine, as well as a few ethics opinions, provide some guidance.

A lawyer who learns that the client has gained access to the opposing party’s emails must do more than simply refuse to discuss the emails with the client. In reaching that conclusion, a Philadelphia ethics opinion analyzed the following situation. The client told the lawyer that he had access to his ex-wife’s email through the computer in his home that she had used during their marriage, and that he had emails between the ex-wife and her counsel that would devastate her case. The lawyer told the client that he did not want to hear anything further.¹⁷

In focusing on Rule 4.4(a), the opinion noted that under Pennsylvania law, unauthorized access to computer-derived information is a felony in some circumstances. The opinion recommended that the lawyer “exercise considerable caution” before deciding whether or how to proceed. The opinion recommended that the lawyer familiarize himself with any applicable criminal or civil law and then discuss at length with the client how and to what extent he became privy to the emails.¹⁸ The opinion also recommended that if the lawyer could not rule out potential civil or criminal liabilities under the circumstances and the client ignored the lawyer’s advice and insisted that the emails be used, the lawyer should seriously consider withdrawing from the representation.¹⁹

A recent Missouri disciplinary case illustrates what a lawyer should not do when a client wants to provide information that the client has wrongfully obtained. A divorce lawyer was suspended indefinitely, with no leave to reapply for six months, because he used emails that his client, the husband, illegally obtained from the wife’s email account.²⁰ ; The lawyer’s client accessed the wife’s personal email account without her permission and obtained payroll information and a list of direct-examination questions from the wife’s counsel. The husband gave the emails to his lawyer. The lawyer viewed the emails and realized they were “verboten,” but used the improperly obtained payroll information during the pretrial settlement conference and used the improperly obtained list of direct examination questions to prepare for trial. The lawyer did not disclose his receipt of the emails to opposing counsel until the second day of trial when he mistakenly included them in a stack of exhibits. In concluding that the lawyer violated Rule 4.4(a), the court rejected the lawyer’s argument that he did not use improper means to obtain the evidence because it was his client who obtained the information.²¹

When the document or information “shows up out of the blue from an anonymous source,” the lawyer does not have the opportunity to discuss with the sender how he or she acquired the information. Once again, the lawyer should exercise considerable caution.

For example, in Burt Hill Inc. v. Hassan,²² helpful documents, including documents that were privileged, proprietary, or otherwise confidential, allegedly showed up from an anonymous source. The court, ultimately unconvinced that the defense lawyers, who came to possess the “anonymously” provided documents, acted appropriately, entered a sanctions order requiring not only the return of all the documents but also prohibiting those documents from ever being introduced into evidence even if they could have been otherwise obtained through legitimate, formal discovery efforts.

The court declined to disqualify the lawyers involved because they had previously obtained an opinion from an outside ethics expert blessing their retention of the documents in question. But the court soundly criticized the merits of the ethics expert’s opinion. “Any suggestion that Defense counsel’s receipt and retention of [the documents] carried no ethical concerns would come not from a careful study of the applicable law, but rather from a failure to appreciate it.”²³

Receiving Inadvertently Sent Documents or Electronically Stored Information

Technologyhasincreased theriskthatclientinformation will beinadvertently sent. SCR 20:4.4(b) and (c) recognize that a lawyer sometimes receives a document or electronically stored information that was mistakenly sent by an opposing party or opposing counsel.

A “document or electronically stored information” includes, in addition to paper documents, email or 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.²⁴

A document or electronically stored information “is inadvertently sent when it is accidently transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted.”²⁵ 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.²⁶ Newly created paragraph (c) specifically applies to information protected by the lawyer-client privilege and the work-product rule.

Paragraph (b) states: “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.”²⁷

Paragraph (b), however, provides no further guidance. Paragraph (b) does not require the receiving lawyer to return the document or preserve it. It does not specify whether the lawyer may read the document if the lawyer already knows it was sent in error, or whether the lawyer must stop reading it upon realizing the error. Nor does paragraph (b) draw any distinction based on whether the document looks privileged. Whatever the lawyer is required or permitted to do and whatever role the client’s wishes should play in the lawyer’s decision are matters beyond the scope of the rules.²⁸

Newly created paragraph (c) reflects the concern that SCR 20:4.4(b) provided no guidance for the receiving lawyer. Paragraph (c), which became effective on Jan. 1, 2017, specifically applies to information protected by the lawyer-client privilege and the work-product rule. If a lawyer knows or reasonably should know that the document or electronically stored information contains information protected by the lawyer-client privilege or the work-product rule and has been disclosed to the lawyer inadvertently, then this rule requires the lawyer to do the following:

• Immediately terminate review or use of the document or electronically stored information;

• Promptly notify the person (or, if communication with the person is prohibited by SCR 20:4.2, the person’s lawyer) about the inadvertent disclosure; and

• Abide by that person’s or lawyer’s instructions regarding disposition of the document or electronically stored information until obtaining a definitive ruling on the proper disposition from a court with appropriate jurisdiction.

Paragraph (c) is crafted narrowly to apply only when the information inadvertently disclosed is protected by the lawyer-client privilege and the work-product rule. The duties imposed by paragraph (c) reflect the importance of the lawyer-client privilege and the work-product rule, and recognize that protecting the lawyer-client privilege promotes the functioning of the justice system.

These duties are consistent with Harold Sampson Children’s Trust v. The Linda Gale Sampson 1979 Trust,²⁹ which concluded that a lawyer, without the consent or knowledge of a client, cannot waive the lawyer-client privilege by voluntarily producing privileged documents, which the lawyer does not recognize as privileged, to an opposing lawyer in response to a discovery request. The court held that only the client can waive the lawyer-client privilege under Wis. Stat. section 905.11 regarding attorney-client privileged documents. Moreover, paragraph (c) is consistent with Wis. Stat. section 804.01(7), which governs recovering information inadvertently produced in discovery.³⁰

Conclusion

SCR 20:4.4 limits the zeal with which lawyers may represent their clients. How does this rule restrict the actions of the lawyer who is extremely frustrated because opposing counsel will not answer emails or return calls, the lawyer whose client brings in a flash drive containing the spouse’s emails, and the lawyer who discovers metadata in the electronic copy of a proposed contract sent by opposing counsel?

The extremely frustrated lawyer violates SCR 20:4.4(a) when, seeing opposing counsel’s wife at the mall, says loudly, “Tell your husband to start paying more attention to his cases and less attention to his secretary.” The frustrated lawyer’s ends – getting opposing counsel to respond to calls and emails – could have been accomplished by more appropriate and effective means and had no substantial purpose other than to embarrass opposing counsel’s wife.

The lawyer who is presented with a flash drive containing emails between the client’s spouse and the spouse’s lawyer, the spouse’s accountant, and several of the spouse’s friends must take care to avoid violating SCR 20:4.4(a). Before taking the flash drive from the client, the lawyer must review applicable criminal and civil law and then discuss at length with the client how the client gained access to the emails. ; If the lawyer concludes that the client violated the rights of the spouse by accessing the spouse’s email, then the lawyer should not take the flash drive and not discuss its contents with the client. ;

The lawyer who receives an electronic copy of a proposed contract is not prohibited by the Rules of Professional Conduct from mining for metadata.³¹ If, however, the lawyer knows or reasonably should know that the metadata, the electronically stored information, contains information protected by the lawyer-client privilege and has been disclosed inadvertently, then SCR 20:4.4(c) requires the lawyer to immediately terminate review of the metadata; promptly notify opposing counsel of the inadvertent disclosure; and abide by opposing counsel’s instructions with respect to the disposition of the metadata until obtaining a definitive ruling on the proper disposition from a court with appropriate jurisdiction.

Endnotes

¹ Under SCR 20:8.4(g), it is misconduct to violate the attorney’s oath, SCR 40.15. The provision in the attorney’s oath frequently relied on is the vow to “abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause.”

² In re Disciplinary Proceedings Against Isaacson, 2015 WI 33, 361 Wis. 2d 479, 860 N.W.2d 490. The Office of Lawyer Regulation’s complaint contains more than 70 paragraphs providing detailed context for and quoting from specific sworn and verified statements the lawyer made in court filings. For example, in a bankruptcy case in Minnesota, she filed a declaration in which she stated “[the Shawano Mayor] is involved in sending her cultic missionaries to other lands to destroy the family values, heritages, and cultures that have preserved peoples of other civilizations for thousands of years” and declared that the mayor “is a member of the most dangerous, dirtiest, and deadliest death cult in human history and is a descendent of Martin Luther and Hitler who started and propagated the Lutheran cult.” Attorney Isaacson also referred to the bankruptcy trustee as “a visceral racist,” an “ignoramus,” and “a member of this most dangerous, dirtiest, and deadliest death cult in human history as well.”

³ Cruz-Aponte v. Caribbean Petroleum Corp., Civ. No. 09-2092 (FAB) (U.S.D. P.R. Aug. 17, 2015).

⁴ Id.

⁵ Id. The court noted that “[d]iscriminatory comments like this undoubtedly occur on a daily basis in the legal profession and are routinely swept under the rug.” The court further noted that “[a]n ABA report published this year, for example, identified ‘inappropriate or stereotypical comments’ directed at female attorneys by opposing counsel as one of the causes of the marked underrepresentation of women in lead trial attorney roles.” The ABA report the court relied on is Stephanie A. Scharf & Roberta D. Liebenberg, First Chairs at Trial: More Women Need Seats at the Table 14-15 (2015).

⁶ In re Barker,No. 55S00-1008-DI-429 (Ind. Sept. 6, 2013).

⁷ Id.

⁸ Sutch v. Roxborough Mem’l Hosp.,No. 1836 EDA 2015 (Pa. Super. Ct. Nov. 15, 2016).

⁹ Id.

¹⁰ Id.

¹¹ In re Hemphill, 971 N.E.2d 665 (Ind. 2012).

¹² Id.

¹³ In re Chavez, NO. S-1-SC-35469 (N.M. Feb. 6, 2017).

¹⁴ Brian S. Faughnan & Douglas R. Richmond, “Model Rule 1.15: The Elegant Solution to the Problem of Purloined Documents,” 26 Law. Man. Prof. Conduct 623.

¹⁵ Id.

¹⁶ ABA Comment [2] to SCR 20:4.4.

¹⁷ Philadelphia Bar Ass’n Professional Guidance Comm., Op. 2008-2 (March 2008).

¹⁸ Id.In a recent opinion, Epstein v. Epstein, 843 F.3d 1147 (7th Cir. 2016), the U.S. Court of Appeals for the Seventh Circuit affirmed that a wife violated the Federal Wiretap Act if she searched her husband’s computer, without having obtained his consent to do so, for evidence of adultery by him that she could use against him in the divorce proceeding.

¹⁹ The opinion suggests withdrawing pursuant to Pennsylvania’s counterpart to SCR 20:1.16(b)(2), which permits withdrawal if a client persists in criminal or fraudulent action involving the lawyer’s services, or SCR 20:1.16(b)(4), which permits withdrawal if a client insists on action that the lawyer considers repugnant or fundamentally opposes.

²⁰ In re Eisenstein, 485 S.W.3d 759 (Mo. 2016).

²¹ Id.

²² No. Civ. A. 09-1285, 2010 WL 419433 (W.D. Pa. Jan. 29, 2010).

²³ Id. at *5.

²⁴ ABA Comment [2] to SCR 20:4.4.

²⁵ Id.

²⁶ Id.

²⁷ Paragraph (b) does not apply to a lawyer’s receipt of wrongfully obtained documents or information.

²⁸ ABA Comment [2] and [3] to SCR 20:4.4.

²⁹ 2004 WI 57, 271 Wis. 2d 610, 679 N.W.2d 794.

³⁰ Wis. Stat. section 804.01(7) states: “If information inadvertently produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”

³¹ Wisconsin Formal Ethics Opinion EF-12-01: The Transmission and Receipt of Electronic Documents Containing Metadata.