Are You in Danger of an Ethics Violation?
By Chase Edward Scott and David Hricik
Chase Edward Scott is a 2009 graduate of Mercer Law School from Chattanooga, Tennessee. He will practice intellectual property law beginning in the fall and can be contacted at chaseedwardscott@gmail.com. Professor David Hricik teaches patents, ethics, civil procedure, and Internet law at Mercer Law School and hosts legalethics.com. He can be contacted at hricik_d@law.mercer.edu.
Lawyers spend millions of dollars to professionally destroy confidential information to prevent its disclosure. Shredding services are often bonded and insured and typically use armored vehicles to ensure security prior to document destruction. If this is the norm for physical document destruction, surely a similar system exists for the treatment of electronic documents, right? Ladies and gentlemen, welcome to the world of metadata.
Metadata is “data about data.” Many commonly used computer programs create data about data and then save that unseen information with the visible text in a single file. This information is typically transferred with the visible text unless it is removed prior to transmission. Generally, each time a file is transmitted, the invisible data also is sent.
But rather than simply revealing seemingly innocuous information, such as the time and date the file had been prepared, metadata can reveal much more. For example, many computer programs permit authors to track text changes, save multiple “undo’s,” or even insert comments that are invisible to other viewers. Such data could reveal a wealth of information to recipients and potentially affect significant negotiation positions or litigation strategies, among other things.
There is a substantial risk that metadata will contain confidential information. Accordingly, a lawyer who knows a document contains embedded information generally has a duty to remove it before transmission. But what about a lawyer who unknowingly transmits a document with embedded confidential information? Has that lawyer violated the duty of confidentiality? Some argue that because “everyone knows” about metadata, any lawyer who fails to remove hidden confidential information has breached his or her professional duty. In the authors’ experience, though, the opposite is true: most attorneys have never heard of metadata, let alone understand how to handle it.
However, the existence of metadata and the dangers it presents for unintended disclosure are becoming more widely known and appreciated. Lawyers will soon, if not already, be unable to avoid negligence claims or defend against bar complaints by pleading ignorance of the risks that embedded information creates. Attorneys should make every effort to prevent disclosure of confidential information.
Given that metadata is a relatively new concern for lawyers, no formal ethics rule expressly addresses whether it is proper for a lawyer to search an electronic file that is sent by opposing counsel for embedded data. Most states, however, have a general catch-all rule that prohibits “professional conduct involving dishonesty, fraud, deceit, or misrepresentation.” State bar associations that have addressed metadata have reached different conclusions.
On one end of the spectrum, the state bar associations of New York, Florida, Arizona, and Alabama conclude that purposefully searching for metadata is unethical. The New York Bar Association, for example, emphasizes that “it is a deliberate act by the receiving lawyer, not carelessness on the part of the sending lawyer, that would lead to the disclosure of client confidences and secrets” in the embedded data.
On the other end, the ABA, Maryland Bar Association, and Colorado Bar Association find nothing unethical with deliberately mining documents sent by opposing counsel outside of the context of discovery for metadata. The ABA in Opinion 06-442 expresses its disagreement in mild terms stating only that it “does not believe that a lawyer . . . would violate” professional duties by mining for metadata. Taking a slightly more nuanced approach, the District of Columbia Bar reasons that viewing metadata is dishonest only if before viewing it a lawyer actually knew that the metadata had been inadvertently sent.
Most states have no opinion. For lawyers in those states, it probably is only a matter of time until formal ethics rules are established to govern the treatment of this important excess electronic information.
For further information regarding the treatment of metadata, including a step-by-step tutorial on how to remove it from your documents, see 13:5 Georgia Bar Journal (Feb. 2008).
READY RESOURCES
  • Just a Click Away: Email’s Ethical Pitfalls (Downloadable Article). 2008. PC # 51105671602PDFA03. Government and Public Sector Lawyers Division.
To order online, visit ABA Practice Essentials: Articles at www.ababooks.org/articles .
  • e-Discovery: Current Trends and Cases (Book). 2008. PC # 1620320.
To order online, visit www.ababooks.org .
 
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