Haw. R. Prof. Cond. 4.4

As amended through September 30, 2024

Rule 4.4 - Respect for Rights of Third Persons

(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 and knows or reasonably should know that the document was inadvertently sent shall:

(1) not read the document further than reasonably necessary to determine its privileged or confidential nature within the meaning of Rule 1.6 of these Rules, and shall not disseminate the document or information about its contents to anyone other than a supervisory lawyer and/or disinterested lawyer consulted to secure legal advice about the receiving lawyer's compliance with this Rule;

(2) promptly notify the sending lawyer; and

(3) either reach agreement with the sending lawyer with respect to the disposition of the material or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.

Haw. R. Prof. Cond. 4.4

COMMENTS:

[1] Responsibility toa 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 documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender and then either reach agreement with the sending attorney as to the disposition of the document or seek a ruling from the court as to whether the attorney-client privilege or work product protection was waived by the disclosure. This Rule incorporates Formal Opinion No. 39, issued by Hawaii's Office of Disciplinary Counsel on April 26, 2001, as well as provisions suggested in "The Future of Inadvertent Disclosure: The Lingering Need to Revise Professional Conduct Rules," P. Schaefer, Vol. 69 Maryland Law Review 195, 258-259 (2010). For purposes of this Rule, "document" includes e-mail or other electronic modes of transmission subject to being read out or put into readable form.