ER 4.4 Respect for Rights of Others

The Standard

Competent, diligent advocacy does not license dishonesty toward or disregard for the rights of others. ER 4.4 prohibits tactics that serve no purpose other than to embarrass, delay, or burden others, or evidence-gathering methods that violate others’ legal rights. It also requires prompt notification to the sender when a lawyer receives inadvertently sent documents or electronically stored information (ESI).

The Limitation

ER 4.4 does not require a lawyer to prioritize third persons over the client. It prohibits only conduct with no substantial legitimate purpose and evidence-gathering that violates legal rights. Aggressive but lawful advocacy is permissible.

FAQs

What conduct violates ER 4.4(a)?

Conduct with no substantial legitimate purpose that embarrasses, delays, or burdens another – or evidence-gathering that violates legal rights. Examples include overbroad discovery served without legitimate evidentiary purpose, personal disparaging remarks about a party in litigation documents, surreptitious recordings in violation of law, and hidden email-tracking software. Violations often accompany findings of unprofessional conduct under Rule 41(b)(7).

I received a document I think was sent to me by mistake. What do I do?

Under ER 4.4(b): stop reading, make no use of the document, and promptly notify the sender so they can take protective measures. Do not share the document with your client in the meantime. Whether you must return or destroy it is a question of law beyond the ERs. If you are uncertain how to proceed, contact the Ethics Hotline.

How do I know whether a document was inadvertently sent?

The standard is whether you know or reasonably should know. Indicators include: the document appears to contain privileged attorney-client communications; it was clearly misaddressed; or its content would put a reasonable lawyer on notice it was not meant for you. Mere uncertainty is not enough to trigger the duty, but recognizable indicators are.

May I look at metadata embedded in electronic documents I receive?

Under EO-20-0008, you may review metadata that is readily viewable in the file’s native software or normal operating system – unless you know or reasonably should know the document or metadata was inadvertently sent. If the metadata appears to contain material confidential information or privileged communications, treat it as inadvertently disclosed and follow the ER 4.4(b) process.

May I use specialized software to search for metadata?

No. “Mining” for metadata – using software designed to retrieve metadata despite the sending lawyer’s efforts to scrub it – violates ER 4.4(a). The line is between what is readily visible in the native application and what requires deliberate extraction with specialized tools.

What are my obligations when sending electronic documents to third persons?

Scrub confidential metadata before sending. Standard scrubbing tools are built into programs like Microsoft Word and Adobe Pro. Knowing how to use them – or ensuring staff can – is part of your duty of competence under ER 1.1. Remove substantive edits, embedded comments, and any privileged communications. Innocuous information (such as basic creation data) may not require removal depending on circumstances. This obligation does not affect your duty to provide redlined documents in negotiation or to produce native-format files when required by discovery rules or court order.

May I embed tracking software (“web bugs”) in emails?

No. Under EO-20-0008, embedding hidden email-tracking software – web beacons, pixel tags, clear GIFs, or invisible GIFs – violates ER 4.4(a) and ER 8.4(c). Unlike metadata-scrubbing software, recipients have no reliable way to detect or block a web bug before it transmits data. Do not use such tools without the recipient’s prior informed consent.

May I threaten criminal prosecution to gain leverage in a civil matter?

Threats of criminal prosecution are not per se violations of the Rules of Professional Conduct, but they require caution. Under Ariz. Ethics Op. 91-07 and ABA Formal Op. 92-363, such a threat is generally permissible only if: (1) the criminal matter is directly related to the client’s civil claim; (2) the lawyer has a well-founded belief that both the civil claim and the potential criminal charges are warranted by the law and the facts; and (3) the lawyer does not attempt to exert or suggest improper influence over the criminal process. A threat that fails these conditions may violate ER 3.1 (no good faith basis in fact and law), ER 4.4(a) (no substantial purpose other than to burden), ER 4.1(a) (if the threat is made with no intention of following through), and potentially Arizona’s criminal extortion statute, A.R.S. § 13-1804. When in doubt, exercise restraint.

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ER 4.4 Respect for Rights of Others

The Standard

The Limitation

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