Rule Text (verbatim from The Florida Bar)
(a) In representing a client, a lawyer may not use means that
have no substantial purpose other than to embarrass, delay, or
burden a third person or knowingly use methods of obtaining
evidence that violate the legal rights of such a person.
(b) 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 must
promptly notify the sender.
Educational reference. This page summarizes a Florida Rule of Professional Conduct for educational purposes. The rule text and Comment are mirrored from the Florida Bar's official publication and are public domain. The plain-English summary and any commentary are the opinion of Phillips, Hunt & Walker and are general information only — not legal advice. Reading this page does not create an attorney-client relationship. If you believe a Florida lawyer has violated this rule, you can file a complaint with The Florida Bar at floridabar.org. Past results do not guarantee a similar outcome.
What this rule means in plain English
A Florida lawyer cannot use means in representing a client that have no purpose other than to embarrass, delay, or burden a third party. The rule also covers inadvertent receipt of confidential documents — if your lawyer receives privileged material clearly not meant for them, they must promptly notify the sender. Modern application includes metadata, electronic discovery, and the kind of hardball litigation tactics that cross from advocacy into harassment.
Florida Bar Ethics Opinions interpreting this rule
- Opinion 93-3 (1993)
<p>If your lawyer accidentally receives a confidential document from the other side — a misdirected email, a privileged file in a discovery production — the lawyer must promptly notify the sender and stop reading. Florida codified this rule in 4-4.4(b) after this opinion. The rule protects attorney-client privilege from being destroyed by a single mistake on either side.</p>
Read on floridabar.org → - Opinion 06-2 (2006)
<p>Metadata in electronic documents (track changes, comments, edit history, embedded data) often contains confidential information. The lawyer sending a document is responsible for stripping metadata that shouldn't go to the other side. A receiving lawyer who notices metadata clearly not meant for them shouldn't dig into it, and must notify the sender if confidential information slips through.</p>
Read on floridabar.org →
Comment (verbatim from The Florida Bar)
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 these 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.
Subdivision (b) recognizes that lawyers sometimes receive a
document or electronically stored information that was mistakenly
sent or produced by opposing parties or their lawyers. A document
or electronically stored information is inadvertently sent when it is
accidentally transmitted, such as when an e-mail or letter is
misaddressed or a document or electronically stored information is
accidentally included with information that was intentionally
transmitted. If a lawyer knows or reasonably should know that a
document or electronically stored 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 document or electronically stored
information, is a matter of law beyond the scope of these rules, as is
the question of whether the privileged status of a document or
electronically stored information has been waived. Similarly, this
rule does not address the legal duties of a lawyer who receives a
document that the lawyer knows or reasonably should know may
have been wrongfully obtained by the sending person. For
purposes of this rule, “document or electronically stored
information” includes, in addition to paper documents, e-mail and
other forms of electronically stored information, including
embedded data (commonly referred to as “metadata”), that is
subject to being read or put into readable form. Metadata in
electronic documents creates an obligation under this rule only if
the receiving lawyer knows or reasonably should know that the
metadata was inadvertently sent to the receiving lawyer.
Some lawyers may choose to return a document or delete
electronically stored information unread, for example, when the
lawyer learns before receiving the document that it was
inadvertently sent. Where a lawyer is not required by applicable
law to do so, the decision to voluntarily return the document or
delete electronically stored information is a matter of professional
judgment ordinarily reserved to the lawyer. See rules 4-1.2 and 4-
1.4.
Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252); March
23, 2006, effective May 22, 2006 (933 So.2d 417); amended May 21, 2015,
corrected June 25, 2015, effective October 1, 2015 (164 So.3d 1217).
4-5. LAW FIRMS AND ASSOCIATIONS