CHAPTER 3 - 3-3 RESPECT FOR THE RIGHTS OF THIRD PARTIES

• Jurisdiction: United States

3-3 Respect for the Rights of Third Parties

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden the person.²¹ This rule is designed to prevent bullying or abuse of process by a lawyer when dealing with a lay person. It also has been used to sanction lawyers who abuse process to obtain evidence or information from third parties.

In one matter, a lawyer was reprimanded for a Rule 4.4 violation where he issued a subpoena to a third-party witness when the matter in which he had issued the subpoena had already been closed by the Freedom of Information Commission.²² A lawyer was reprimanded for a Rule 4.4 violation when he hummed the theme from Twilight Zone twice during the deposition of a party to a divorce proceeding.²³ A reprimand was issued where a lawyer shouted at another lawyer and threatened her career over conduct at a deposition.²⁴ A reprimand was issued for a Rule 4.4 violation where a lawyer, who obtained a damaging psychological report about a party adverse to his client, gave the report to the lawyer for that party's spouse to be used in a child custody dispute in which the lawyer had no involvement.²⁵ Discipline for a violation of Rule 4.4 was reversed on appeal when there was no showing that the filing of a capias order by an attorney, who did not realize that the party had filed a protective order regarding the deposition, was an act of deliberate indifference to the rules of conduct but was, at worst, a simple mistake.²⁶

Rule 4.4 also prohibits the use of methods of obtaining evidence that violate the rights of a person.²⁷ A presentment was ordered for a violation of Rule 4.4 in a matter where a lawyer obtained reports from a chiropractor, used them to settle his clients' cases, and then failed to pay the doctor an agreed amount under a letter of protection.²⁸ A reprimand was issued for a Rule 4.4 violation where a lawyer failed to pay a court reporter's bill and failed to pay a small claims judgment ordering him to do so.²⁹ A pattern of aggressive conduct in litigation in which the lawyer was also a party resulted in a Rule 4.4 violation.³⁰

If there are legitimate reasons to employ sharp tactics, no rule violation may be found regardless of the effect on the third party. As one judge noted when vacating a reprimand for a violation for a Rule 4.4 violation where a lawyer had issued a capias in a civil case:

The rule is designed to prohibit a lawyer from using

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