ETHICAL CHALLENGES POSED BY THE TRANSMISSION OF METADATA

Several U.S. attorney disciplinary bodies have issued opinions on the dangers of counsel’s inadvertently transmitting attorney-client confidences within metadata embedded within electronic documents, and regarding the ethical permissibility searching for and viewing of such metadata by attorneys who receive those documents. A number of jurisdictions have adopted the ABA’s (American Bar Association) recommendations regarding the transmission and review of metadata encoded within electronic documents.

The following questions have been addressed in this article:

What jurisdictions follow the ABA’s opinion?
Are there jurisdictions that do not follow the ABA’s conclusions?
Has any jurisdiction found that the inadvertent sending of metadata is unethical?
What could a lawyer do to prevent the inadvertent transmittal of metadata?

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