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Attorney E-Newsletter

July 2006

RPC 4.4: Respect for Rights of Third Persons

The Rules of Professional Conduct create a wide range of responsibilities toward courts and clients, but a few of the rules create specific duties toward third parties who are not clients as well. For example, RPC 1.15 requires a lawyer to handle property in which a third party has an interest with the same care as that owed to a client. RPC 4.1 specifically addresses false statements directed to those other than clients. RPC 4.2 and 4.3 describe duties regarding communication with third parties who are and are not represented by counsel, respectively.

RPC 4.4 is captioned "Respect for Rights of Third Parties." Prior to January 1, 2005, it contained only one provision - a rule prohibiting a lawyer from using "methods of obtaining evidence that violate the legal rights of a third person." There is only one Disciplinary Board decision on record in which a violation of this rule was found, a 1996 decision involving a lawyer who had used an invalid subpoena to obtain medical records.

In the amendments effective January 1, 2005, the scope of RPC 4.4 was enlarged. The former rule was renumbered 4.4(a), and its prohibitions were expanded to include sue of "means that have no substantial purpose other than to embarrass, delay, or burden a third person." No cases have been decided yet that clarify the application of this language. Comment 1 notes, "It is impractical to catalogue all such rights, but they include . . . and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship."

The Rule was also amended to add a new clause 4.4(b), which provides that when a lawyer receives communications which he or she knows were "inadvertently sent," the lawyer must notify the sender of receipt of the information. The rule does not contain any guidance on whether the lawyer may use the information or must destroy or return the improperly sent information. Comment 2 notes, "Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived." Comment 3 states that in the absence of governing law, the question of whether to use, return, or destroy the communication is "a matter of professional judgment ordinarily reserved to the lawyer." However, the notice requirement allows the sender to "take protective action." Comment 2 also clarifies that the provision applies to modes of communication such as email, fax, and other electronic communications capable of being read or put into readable form.

Tip of the Month: Who Will Carry On?

"And when I die, and when I'm dead, dead and gone, there'll be one child born, and a world to carry on." Laura Nyro, "And When I Die"

It is hard to think of the long run when you are busy meeting deadlines all day, but every practicing lawyer should ask himself or herself once in a while: If I should suddenly be unavailable, due to death or disability, what would happen with my practice? Are your files, calendar, ledgers, and other records kept in a condition where a successor could quickly pick them up without injury to your clients? If you are in a firm or office, is there an understanding as to who would take over for a partner or associate? Particularly if you are a solo practitioner, do you have a substitute designated in the event of your unexpected unavailability? Have you informed your family and your executor of what arrangements you have made to take care of your practice? The Disciplinary Board has devoted a considerable amount of discussion to the problem of succession for aging, dying, or disabled lawyers. As the lawyer population ages and more practitioners continue to work into their advanced years, the question of succession becomes more compelling. There may be some rule changes in the future to address these concerns. For now, this article published by the American Bar Association discusses both the problems presented by unplanned succession, and also the steps a lawyer may take to prepare for the moment we hope never comes.

Disciplinary Board News:

Property Handling Comments Deadline Extended

The deadline for comments on the Disciplinary Board's proposed revisions to RPC 1.15, regarding handling property, has been extended to August 10, 2006. The proposed rule changes are set forth here. The proposal was published at 36 Pa.B. 2801 (June 10, 2006).

Rule Change Allows Administrative Fee

The stigma of discipline just acquired a little extra sting. By a rule change published at 36 Pa.B. 3646 effective July 15, 2006, an administrative fee of $250 may be included among the expenses taxed upon the imposition of any discipline other than informal admonition.