12.05. Limitation on Advice: Obligation to Respect the Rights of Third Persons [Rule 4.4(a)]

A lawyer’s primary obligations run to the client.  However, the purpose of some actions is not primarily to assist the client, but is instead the primary objective is to harm a third party in some way.  Rule 4.4(a) provides that a lawyer “shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”  There are a couple of things to note about this rule.  The first is that the rule prohibits actions when the “substantial purpose” is merely to embarrass, etc. the third party.  That means that the action could have some benefit for the client, but  if the harm outweighs the benefit, the lawyer violates Rule 4.4(a). 

Eric Zahnd, a prosecutor in Missouri, prosecuted Darren Paden for sexual misconduct with a minor.  Paden was very well known in the community and the case received a great deal of publicity.  At one point Paden claimed he was innocent of the charges.  Later, however, he pleaded guilty to two charges.  At the sentencing hearing, a number of members of the community wrote letters to the judge urging leniency in sentencing.  Some expressed disbelief that Paden committed the crimes.  After the sentencing hearing, Zahnd issued a press release that listed all of the individuals writing letters on behalf of Paden.  Did Zahnd act unethically in disclosing the names in the press release? [Zahnd v. Office of Chief Disciplinary Counsel, 2018 WL 4035533 (2018) (petition  for writ of cert – denied Oct. 1, 2018)]

Yes.  While the prosecutor may have had some legitimate purpose for the disclosure (inform the public what was in the public record), the Missouri Supreme Court held that there was no “substantial purpose” other than  to embarrass those who wrote letters on behalf of the defendant.  Zahnd was reprimanded for issuing the press release.

The current rule is a change from the version in the Model Code (the prior version of the ethics rules).  The prior rule provided that it was unethical to take action “when [the lawyer] knows that such action would serve merely to harass or maliciously injure another.”[1]  Courts interpreted this to mean that a lawyer acts improperly only if the sole purpose of the action was to harass/maliciously injure a third party.[2]  Rule 4.4(a) is different from this in two respects:  “First, it prohibits lawyers from using means ‘that have no substantial purpose’ other than to ‘embarrass, delay, harass or burden a third person.’  The phrase ‘no substantial purpose’ suggests that a lawyer may violate the rule even if he or shehad some purpose other than harassing or otherwise burdening another, as long as that other purpose was not ‘substantial.’  Second, under [Rule 4.4(a)], a lawyer may violate the rule not only by harassing or causing ‘malicious injury’ to another, but also by ‘embarrassing,’ ‘delaying,’ or ‘burdening’ a third person.”[3]   

Linda Lawyer represents Carl Client.  Client owns a building in Springfield that was partially destroyed by a storm.  The Springfield City Council informed Client that he had to either:  (1) tear down the building; or (2) repair it. The minimum cost would be $50,000.  To allow Client to avoid having to pay the cost, Lawyer arranged for Client to transfer the property to Barney Gumbel:  “an alcoholic, frequently intoxicated, frequently homeless, [who] did not have a bank account and, during the majority of his adult life [was] unemployed.”  Gumbel was drunk when he signed the contract for the property.  Because Gumbel had no money, the City ultimately had to demolish the structure and also hired a lawyer to assist Gumbel to invalidate the contract.  Was Lawyer’s actions ethical? [In re Royer, 78 P.3d 449 (Kan. 2003)]

No. The court noted that the it was true that  actions did have a benefit for the client – by transferring ownership of the property prior to demolition  the client was able to avoid the cost associated with tearing down the building.  However, the court noted that the “substantial” purpose of the act was to burden the City (which had to pay to tear down the building) and Gumbel (who held property subject to back taxes and a negative value).  The court also held that the conduct violated Rule 8.4(c) because it was fraudulent and dishonest.  The attorney was suspended for three months.

This is, by definition a balance.  Consider these facts.  Husband and Wife are in a bitter and contentious divorce.  In the course of the divorce, the lawyer for Wife contacts Husband’s commanding officer to inform him that Husband was abusing Wife and requesting an investigation (there was strong evidence of prior abuse by Husband).  As a result, Husband lost his security clearance.  Husband filed a complaint alleging that the call to his commanding officer was to embarrass/burden him.  The lawyer responded that she contacted the commanding officer to protect her client, because Husband had said that he would not do anything to jeopardize his military career.  The court held that the lawyer did not violate Rule 4.4(a) because her substantial purpose in contacting the officer was not to embarrass/burden the Husband – even though it did that – but to seek help for client.[4]

In addition to prohibiting conduct whose “substantial purpose” is to embarrass/burden third persons, Rule 4.4(a) also makes it unethical to “use methods of obtaining evidence that violate the legal rights” of third persons.  Clients hire lawyers to research/investigate and to provide advice.  This section of 4.4(a) provides that a lawyer may not obtain information in a way that violates the law. 

Cecil Nolan was representing a plaintiff in a copyright infringement case.  Nolan hired investigators to pose as customers.  The investigators lied to the employees of the defendant store and used tactics to prod employees to make statements about the product.  The conversations were secretly recorded.  The misrepresentation and secret-tape recording were improper.  Has the attorney violated Rule 4.4(a)? [Matter of Nolan, 796 S.E.2d 841 (S.C. 2017)]

Yes.  The use of deception and secretly-recording the conversations were obtained improperly – in violation of the legal rights of the defendant.  Recall, the fact that the lawyer did not engage in the conduct himself is irrelevant.  A lawyer is responsible for the conduct of those acting at the lawyer’s instruction.

[1] Model Code of Professional Responsibility DR 7-102(A)(1)(emphasis added).

[2] In re McGraw, 414 P.3d 841, 854 (Or. 2018).

[3] In re McGraw, 414 P.3d 841, 854 (Or. 2018).

[4] State ex rel. Scales v. Committee on Legal Ethics of West Virginia State Bar, 446 S.E.2d 729 (W. Va. 1994).