Model Rule 4.4: Respect for Rights of Third Persons

When it applies

This comes up in discovery disputes, aggressive litigation tactics, and the classic "inadvertently sent privileged email/document" fact pattern that is a staple MPRE scenario. It tests whether students understand that the duty upon receiving misdirected material is only to notify, not to refrain from using or to return the material.

What the rule requires

• A lawyer may not use means during representation that have no substantial purpose other than to embarrass, delay, or burden a third party.
• A lawyer may not use methods of obtaining evidence that violate the legal rights of a third person.
• Upon receiving a document or electronically stored information relating to the representation that the lawyer knows or reasonably should know was inadvertently sent, the lawyer shall promptly notify the sender.
• The notification duty applies regardless of whether the material is privileged, so long as the lawyer knows or reasonably should know it was sent by mistake.
• The rule governs conduct toward third persons generally, including opposing parties, witnesses, and unrepresented persons, distinct from the truthfulness duty in Rule 4.1 and the communication restrictions in Rules 4.2 and 4.3.

Exceptions

• Rule 4.4(b) only requires notification to the sender; it does not itself require returning, destroying, or refraining from reading/using the material (that is left to other law, such as applicable procedural rules and the law governing waiver of privilege).
• Whether the lawyer may thereafter use the inadvertently sent material is a matter of law outside Rule 4.4, not dictated by the rule itself.

How the MPRE tests Model Rule 4.4

• Students often assume the receiving lawyer must return or delete inadvertently sent material; the rule only mandates prompt notice to the sender.
• Questions may disguise harassment as 'zealous advocacy'; if the tactic has no substantial purpose other than to embarrass, delay, or burden a third person, it violates 4.4(a) regardless of client instructions.
• MPRE may test the trigger standard: the duty arises when the lawyer 'knows or reasonably should know' the material was inadvertently sent, not only with actual knowledge.
• Students confuse this rule with Rule 4.1 (truthfulness to third persons) or Rule 4.2/4.3 (contact with represented/unrepresented persons), which govern different conduct entirely.