Concept
Procured Versus Received Materials
Rule 4.4(a): Means that burden third persons or violate their rights
Procured Versus Received Materials
Two duties in Rule 4.4 apply when a lawyer ends up holding the other side's privileged or confidential material, and one question decides which applies: did the lawyer help bring the material across? A lawyer who did violates the second clause of Rule 4.4(a), which forbids "methods of obtaining evidence that violate the legal rights of such a person."1 A lawyer who did not triggers only the notice duty of Rule 4.4(b). A lawyer who receives a document relating to the representation, and who knows or reasonably should know that it was inadvertently sent, must promptly notify the sender.2 Subsection (b) is taught in full in the separate reading on inadvertently sent documents, so this section only draws the boundary between the two provisions.
A lawyer who procures, solicits, or accepts an offer to deliver another's privileged or confidential information takes an active part in depriving that person of legal rights, and so violates the second clause.3 The lawyer need not do the taking personally. Cultivating a person with inside access, welcoming what that person sends, and then calling the delivery unsolicited does not turn a procurement into passive receipt.4 The same logic reaches the oral channel covered in the previous section. A lawyer who questions a current or former insider about the substance of privileged communications has gone beyond permitted fact-gathering, whether or not any document changes hands. A lawyer who deals with someone known to have had access to such communications should also caution that person not to reveal them, unless the person is unrepresented and authorized to waive the privilege.5
The law supplies a sanctioned route to an opponent's information, and that route is discovery. Even there, a request is likely to cross an ethical line when it plainly seeks irrelevant, privileged, or otherwise protected information.6 A party whose privileged material is exposed through the back door has lost a legal right, and when the lawyer asked for the exposure, the loss is the lawyer's own doing. The risk is also lopsided. If the privilege turns out not to attach, the lawyer who went around discovery may escape harm through sheer luck. If it does attach, the lawyer faces consequences that can cost the lawyer the representation itself.7
A lawyer who only receives material stands elsewhere. A passive recipient of materials sent by the other side cannot be expected to erase what the first look revealed, and cannot be punished for innocently accepting them.8 Once the lawyer learns that the materials were privileged and mistakenly delivered, the lawyer must alert the sender and may not conceal possession. Rule 4.4(b) requires that notice and goes no further, leaving return, destruction, or use of the materials to the substantive law of the jurisdiction.9 Notice is the required step because only the sender can act on the mistake, by asking for the materials back or seeking a protective order, and the sender cannot do either without knowing the materials left the building.
The duty covers electronically stored information, so a misdirected email and its attachments fall within it. Embedded metadata creates an obligation only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent.10 Whether a lawyer may look at metadata that was inadvertently produced remains a live controversy, and that topic is treated separately.11
On an exam, a stem that ends with a lawyer holding an opponent's privileged documents is asking first how the documents arrived. Three scenes show how much that one fact decides.
The third scene sits between the first two. The lawyer procured nothing, yet the material arrived under circumstances showing the sender had no authority to disclose it. Rule 4.4 gives no direct answer here, because subsection (b) speaks to inadvertent sending and not to unauthorized disclosure.12 Passive, unsolicited receipt is not misconduct, so the crucial question is what the lawyer does next. At a minimum the lawyer must notify the opposing party, and reviewing and using the material can bring discipline, disqualification, and other sanctions.13 Ethics guidance from the American Bar Association points the same way. It advises the lawyer to refrain from reviewing the material beyond what is needed to decide how to proceed, to notify the adversary's lawyer, and to follow that lawyer's instructions or hold off on use until a court resolves the question.14 The default favors confidentiality because a wrongdoer's misappropriation does not strip the privilege from the documents, absent an implicit waiver by an owner who made no effort at all to protect them.15