The Virginia State Bar has proposed a significant revision to Rule 4.4(b) and its comments that does NOT follow the text of the Model Rules.
The Model rule states: "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."
In contrast, the proposed new rule in Virginia states: "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information is privileged and was inadvertently sent shall immediately terminate review or use of the document or electronically stored information, promptly notify the sender, and abide by the sender’s instructions to return or destroy the document or electronically stored information."
Do you see the difference? The proposed rule imposes a much more detailed duty on the lawyer and addresses what the comments to the Model Rules refer to as matters "beyond the scope of [the] rules."
In particular, comment [2] to Model Rule 4.4(b) states that "[w]hether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules ..." But, as you see above, the Virginia proposed rule does impose specific duties that go beyond notifying the sender. They impose a duty to immediately terminate review or use of the materials, and abide by the sender’s instructions to return or destroy the document or electronically stored information. Presumably, this means to stop reading the moment it is evident the attorney should not be reading whatever it is that was sent by mistake.
The Legal Profession Blog has the full text of the proposed new rule here.
No comments:
Post a Comment