Vt. R. Prof. Cond. 4.4
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 information that was mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that a such 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 information or original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of information has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives information that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, information" includes tangible documents and e-mail or other electronic modes of transmission subject to being read or put into readable form.
[3] Some lawyers may choose to return information that was inadvertently sent unread, for example, when the lawyer learns prior to receipt that the information was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.
[4] Lawyers should be aware that this rule does not alter, modify, or change duties imposed by applicable rules of procedure upon the receipt of information that may or may not constitute work product or a privilege waiver. Whether information is work product or privileged is beyond the scope of these rules, as is whether a privilege has been waived.
Vt. R. Prof. Cond. 4.4
Board's Note-2022 Amendment
Prior to this amendment, paragraph (b) referred only to the inadvertent production of "documents." Comment [2] defined "document" to include "e-mail and other electronic modes of transmission subject to being read or put into readable form." The amendment replaces "document" with "information" and at the same time moves what was stated in comment [2] into the body of the rule, thereby clarifying a lawyer's duties. See Preamble & Scope, Paragraph [15] ("Comments do not add obligations to the rules but provide guidance for practicing in compliance with the rules.") The change reflects the reality of the practice of law in the 21st century: information exchanged while representing clients is not limited to paper documents. There is no reason to exclude electronically stored information from the duty imposed by paragraph (b).
Comment [4] is added to clarify that Rule 4.4(b) is limited to a lawyer's ethical obligation. The rules of procedure might impose additional obligations or duties related to the receipt of documents or electronically stored information that were inadvertently produced.
Reporter's Notes-2009 AmendmentV.R.P.C. 4.4 is amended to conform to the changes in Model Rule 4.4. The ABA Reporter's Explanation is as follows:
TEXT:
Paragraph (b): Add material on obligations of lawyer upon receipt of inadvertently sent document Numerous inquiries have been directed to ethics committees regarding the proper course of conduct for a lawyer who receives a fax or other document from opposing counsel that was not intended for the receiving lawyer. ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-368 advised that the receiving lawyer is obligated to refrain from examining the materials, to notify the sending lawyer and to abide by that lawyer's instructions. That opinion has been criticized, in part because there is no provision of the Model Rules directly on point. The Commission decided that this Rule should require only that the lawyer notify the sender when the lawyer knows or reasonably should know that material was inadvertently sent, thus permitting the sending lawyer to take whatever steps might be necessary or available to protect the interests of the sending lawyer's client.
COMMENT:
[1] A phrase has been added to this Comment identifying "intrusions into privileged relationships" as among the third-party rights a lawyer must respect.
[2] This new Comment explains the obligations imposed by paragraph (b). It makes clear that the Rule does not address possible additional obligations of the lawyer that might be imposed by other law. Nor does it address the legal duties of a lawyer who receives a document that the lawyer knows or believes may have been wrongfully obtained by the sending person. Finally, the Comment explains that, for purposes of the Rule, the term "document" includes email or other electronic modes of transmission.
[3] This new Comment lends support to those lawyers who voluntarily choose to return a document unread when they know or reasonably believe that the document was inadvertently sent. The Commission believes that this is a decision ordinarily reserved to the lawyer under Rules 1.2 and 1.4 and that a lawyer commits no act of disloyalty by choosing to act in accordance with professional courtesy.