Following is the 21st post in a series about recent changes to the California Bar Association’s Rules of Professional Conduct (RPC). This rule is found in Chapter 4, which is titled “Transactions with Persons Other than Clients.”
As this is a new rule, it is not a revision of a previous rule. CBA’s Rule 4.4 addresses “duties concerning inadvertently transmitted writings” and can be seen here:
Rule 4.4 Duties Concerning Inadvertently Transmitted Writings
Where it is reasonably apparent to a lawyer who receives a writing relating to a lawyer’s representation of a client that the writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall:
(a) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and
(b) promptly notify the sender.
As set forth above, this rule basically says that if a lawyer receives a document he or she knows was sent to them by mistake, and they can see that the material in the document is either privileged or protected under work-product doctrine, the lawyer shall set the document aside AND let the sender know about the mistake.
Rule 4.4 of the American Bar Association’s (ABA) RPC is titled “Respect for Rights of Third Persons” – very different from the title of CBA’s version of this rule. The ABA’s rule focuses more on the lack of respect a lawyer shows a third party while trying to obtain evidence to which they are not entitled. “… no substantial purpose other than to embarrass, delay, or burden a third person” is the phrase used in ABA’s Rule 4.4. And instead of a “writing” – as stated in the CBA’s version of the rule, the ABA describes it as “a document or electronically stored information.”
Benefit: Generally speaking, this rule makes it less likely a client’s lawyer will overstep his or her bounds in connection with any written communication received in relation to a matter with which he or she is involved. The two warnings in this rule – to refrain from examining the writing more than necessary and to promptly notify the sender – can benefit the client in that they will now understand the boundaries their lawyer needs to follow in relation to their matter.
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