North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 02 - RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR › Section .0400 - TRANSACTIONS WITH PERSON OTHER THAN CLIENTS › Section 02 RULE 4.04 - RESPECT FOR RIGHTS OF THIRD PERSONS

Current through Register Vol. 39, No. 2, July 15, 2024
(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
				writing relating to the representation of the lawyer's client and knows or
				reasonably should know that the writing 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] Threats, bullying, harassment, insults,
				slurs, personal attacks, unfounded personal accusations generally serve no
				substantial purpose other than to embarrass, delay, or burden others and
				violate this rule. Conduct that serves no substantial purpose other than to
				intimidate, humiliate, or embarrass lawyers, litigants, witnesses, or other
				persons with whom a lawyer interacts while representing a client also violates
				this rule. See also Rule 3.5(a) (prohibiting conduct intended to disrupt a
				tribunal) and Rule 8.4(d) (prohibiting conduct prejudicial to the
				administration of justice).
[3]
				Paragraph (b) recognizes that lawyers sometimes receive writings that were
				mistakenly sent or produced by opposing parties or their lawyers. See Rule
				1.0(o) for the definition of "writing," which includes electronic
				communications and metadata. A writing is inadvertently sent when it is
				accidentally transmitted, such as when an electronic communication or letter is
				misaddressed or a document or electronically stored information is accidentally
				included with information that was intentionally transmitted. If a lawyer knows
				or reasonably should know that such a writing was sent inadvertently, then this
				rule requires the lawyer promptly to notify the sender in order to permit that
				person to take protective measures. This duty is imputed to all lawyers in a
				firm. Whether the lawyer who receives the writing is required to take
				additional steps, such as returning the writing, is a matter of law beyond the
				scope of these rules, as is the question of whether the privileged status of a
				writing has been waived. Similarly, this Rule does not address the legal duties
				of a lawyer who receives a writing that the lawyer knows or reasonably should
				know may have been inappropriately obtained by the sending person. 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. A lawyer who receives an electronic
				communication from the opposing party or the opposing party's lawyer must
				refrain from searching for or using confidential information found in the
				metadata embedded in the communication. See 2009 FEO 1.
[4] Some lawyers may choose to return a
				writing or delete electronically stored information unread, for example, when
				the lawyer learns before receiving the writing that it was inadvertently sent.
				Whether the lawyer is required to do so is a matter of law. When return of the
				writing is not required by law, the decision voluntarily to return such a
				writing or delete electronically stored information is a matter of professional
				judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.