Technology-Property provides information on current technology and microcomputer software of interest in the real property area. The editors of Probate & Property welcome information and suggestions from readers.

Pitfalls of Exchanging Documents Electronically

A growing trend among lawyers, especially in the area of commercial real property work, is the exchange of documents, legal and otherwise, via electronic mail or other network driven transmission facility. Electronic exchange allows lawyers and clients to interact directly, massaging text and altering substance and form in a much easier fashion than in the past. This practice has ramifications of which lawyers should be aware when sending or receiving documents electronically.

Hidden File Information

One important consideration is the ability of word processing programs-including both Microsoft Word and Corel WordPerfect-to include information in a saved file that is not readily apparent to the eye. This is a significant enough issue to have prompted a recent front page article in the Wall Street Journal (Michael McCarthy, Electronic Form of '"Invisible Ink" Inside Files May Reveal Secrets, Oct. 20, 2000, at A1). The article discussed features of Microsoft Word that enabled a law firm client to see that work done for it by the firm was originally performed for another client and simply adapted to its needs. In another case a candidate for public office used the same features to find out who was sending out anonymous e-mails maligning him.

For years, WordPerfect was the lawyers' word processing application of choice. Corel and its predecessors catered to the legal market, including functionality-such as document assembly-in a version of WordPerfect designed for lawyers. The business world, on the whole, uses Microsoft Word as its application of choice. However, as document exchange between law firms and the business world has become more common, it has become very apparent that Word and WordPerfect do not play nicely together. Even in the latest versions, documents do not always convert seamlessly between Word and WordPerfect. Letters and characters change, formats and layouts are altered (many times in such a way as to preclude "fixing" them in the converted document), sections disappear and extraneous characters appear.

One result of this trend toward exchanging documents is the increased use of Microsoft Word in law firms. That has made some of the issues that arise specifically with Word of higher priority to firms. Nevertheless, users must be aware that WordPerfect also has the capacity to include unwanted data with distributed files. However, some other issues raised by the use of Word such as potential macro viruses are noticeably absent from the Corel product.

Finding "Buried" Data

Both Word and WordPerfect create document information. In WordPerfect, one may find this information by clicking on the "File" menu, then choosing "Properties." Information that may be found here includes the name of the person creating the document, date of creation, version number and a description of the document. These fields are easily removed from a document by clicking on "Options" in the "Properties" window and then choosing "Delete summary from document." Also, choosing the "Setup" button in the "Summary" box lets the user set the program to omit any or all of this information on documents by checking off the information to be included or excluded.

Microsoft Word tracks similar items, and this tracking ability probably enabled the political candidate's staff to locate the original sender of the documents referred to in the Wall Street Journal article. (The article cautions that this information can be "faked" and so may not be reliable.) The information includes, as in WordPerfect, author, date of creation, and so forth. The information in both Word and WordPerfect is generally drawn from the user's computer. If the operating system, be it Windows 95, 98 or 2000-is identified as belonging to a particular user, this user information will show up in the final document unless the feature is turned off.

Knowledgeable word processing users may be able to find additional information held with a document. For example, WordPerfect may keep the "workspace" with the document as it is saved over time unless the user has opted to disable it. The default for the feature is "off." But if the feature is turned on, items "cut" from the document that are not normally viewable can be seen when the workspace is viewed. WordPerfect is ostensibly saving the information in case it is needed again in the future, but if the document is distributed, the workspace goes with it. In addition, the workspace may hold the information that the word processor needs to "undo" actions.

The "Undo" feature is an excellent tool when one has typed, erased, removed or misformatted something and wants to just start over. Clicking on "Undo" accomplishes that. But modern word processing software allows users to go back to more than just their most recent step, and clicking "Undo" five times can undo the last five things done.

The problem arises when the word processor retains these layers of information when the document is closed, saved and then reopened. If the file is sent to someone else, that person may be able to undo the last steps taken. If those steps were important, such as adding (or more likely deleting) important data, names or other information, the file recipient will be aware of that information. The "compare changes" feature in Word raises similar issues, since it allows a user to see what changes have been made to a document. Being aware of these issues, and either turning them off or making certain that settings to prevent their use are chosen, is critical to the electronic sharing of documents.

The Macro Virus Problem

In addition to the potential for providing access to information that was not intended, the sharing of Word documents raises the possibility of exchanging Word macro viruses. These viruses are invasive applications designed to do damage to computers, computer data or networks. Even if a document was created "in house," if it is sent outside the firm and then returned, it could become "infected" with a virus buried in the client's system of which the original sender was unaware was not aware. The virus will be released into the firm's system automatically on opening the document in Microsoft Word.

Scanning documents for macro viruses is thus an essential part of electronically exchanging documents. Also be sure the firm's system is free of such viruses when sending documents out to others. Whether there would be liability on the firm's part for viruses spread to other systems is still a developing area of the law. Who wants to be the test case?

Version Control Issues

Another issue that arises in sharing documents electronically is controlling changes that occur to a document. If a contract is sent to a client for review of a clause and the client alters not only that clause but also one or more others, how will anyone else know? If a firm exchanges documents with clients while the documents are in development (as opposed to providing a final copy for client use), the firm should make certain to check the new document against the one originally sent. This can be done in both Microsoft Word and WordPerfect by using the Compare Document feature, which allows one to see all the changes that have been made in a document from one saved version to another. Finding out later you approved a contract that had provisions the firm was unaware of is probably not where most lawyers want to be.

There are important practical aspects to controlling the version as well. For example, if three different people or entities are reviewing a contract and each sends back an electronic version, which version is the right one? Which version is the starting point for the others and how can one be certain that all changes are in fact correctly made or at least considered? When several persons are reviewing a document, it may be best to rely on the old-fashioned hard copy. The document can be distributed by e-mail, with reviewers faxing back pages on which they have comments.

One might also "daisy chain" the document, having each person review it and pass it along to the next. The difficulty with this method is that no one knows what changes have been made or suggested by whom, and changes made by the first reviewer may be undone by the second or third, much to the first reviewer's chagrin. Consider this element when deciding how to circulate documents for review and comment.

Whether the changes and amendments are actually being entered into the document by the lawyer or by support staff, some method of assigning responsibility for keeping a copy of the current and correct document must be developed. In addition, because documents may "go along" to meetings on laptops or palm-sized devices, it is important to make certain that changes entered in remote systems also get into the "official" version.

Software Solutions

Fortunately, both Word and WordPerfect have version control features which are accessible from the "Files" menu and must be turned on and configured to work properly. For practitioners who frequently work with electronic documents and pass them from one computer to another, learning to use such a feature could save a tremendous amount of time and trouble. Both Word and WordPerfect have tutorials and help features available to educate the user on this potentially life-saving feature.

One final caution is appropriate for lawyers in today's busy, and automated, practice: take care in using a previously developed document as a template for new documents. It is not uncommon in modern practice to see pleadings with the wrong headers, contracts which start out referring to one party and then end up referring to another, for whom the form was originally developed, or letters that refer to the wrong matter. When using internally developed documents as forms, proofreading is essential. Courts and clients frown on receiving documents created for other matters, and it is professionally embarrassing, to say the least. The search and replace function may find most references to a previous client in a document, but if the client's name was shortened, abbreviated or misspelled, search and replace will not find it. Always proofread documents in hard copy before they are distributed to check for such oversights.


Word processing applications have grown in functionality and power. That growth has made life both easier and harder. Paying attention to what the word processing program actually does, the information it collects and where and how it is retained is essential for lawyers exchanging documents with others or within their own practices.

Technology-Property Editor: Robert A. Heverly, Albany Law School, 80 New Scotland Ave., Albany, NY 12208,