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S.C. R. Prof. Conduct 4.4

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Rule 4.4 Respect for Rights of Third Persons

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Rule Text

(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 or electronic information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronic information was inadvertently sent shall promptly notify the sender.

Amendment history: (Last amended by Order dated November 17, 2021.)

Plain-English Summary (for reference only — not a substitute for the rule text above)

This summary is not the rule. The rule text controls.

When a lawyer is working on a case, they can't use tactics that only exist to harass, delay, or annoy someone else. This means a lawyer can't send threatening letters just to scare someone, drag out the case to wear down the other side, or dig up evidence through methods that break the law or violate someone's rights. Lawyers are allowed to be tough and push hard for their client, but there has to be a real legal reason behind what they're doing.

The rule also covers what happens when a lawyer gets documents or files by mistake, like an email or paperwork meant for someone else. If the lawyer knows, or should reasonably realize, that this material was sent to them accidentally, they have to tell the sender right away. This gives the sender a chance to figure out what to do next, like asking for the material back or addressing any mix-up.

In short, this rule keeps lawyers from misusing their power to bully or trick people who aren't even part of the legal fight. It also promotes basic honesty when someone accidentally shares information they shouldn't have.

Committee Notes

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 or electronic information that was mistakenly sent or produced by opposing parties or their lawyers. A document or electronic information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronic information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronic 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 or electronic information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronic information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronic information that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, "document or electronic information" includes, in addition to paper documents, email and other forms of electronic 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 electronic 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 electronic information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

Last amended by Order dated November 17, 2021.

← Previous Rule 4.3: Dealing with Unrepresented Person Next → Rule 4.5: Threatening Criminal Prosecution