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.
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Metadata is defined by The Sedona Guidelines(created by an influential working group of legal and technology experts), as information about a particular document which describes how, when, and by whom it was collected, created, accessed, or modified and how it is formatted; including data demographics such as size, location, storage requirements, and media information. Metadata is hidden to casual observation, but can be made visible by those exercising the appropriate technical skills to decode the hidden information. For instance, the “track changes” function of Microsoft Word may provide extensive information about the nature and extent of document modifications, so that text that appears to be deleted may in fact become accessible.
In August, 2006, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility concluded that the Model Rules of Professional Conduct do not contain any specific prohibitions against a lawyer accessing and using metadata inadvertently sent by opposing counsel to an adverse party and, therefore, lawyers have no ethical duty against searching for and using metadata embedded in electronic documents received from adverse parties. The Committee, however, noted the Model Rule 4.4(b), which concerns a lawyer's receipt of inadvertently transmitted confidential information and reads, "(a) lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender." However, Rule 4.4(b) is silent as to a lawyer's use of deliberately sent data. Ultimately, the Committee interpreted Rule 4.4(b) to require counsel to provide prompt notice to the sender of inadvertently sent information, but provided no other restrictions on the receiving lawyers’ conduct.
Rather, the Committee stated that the ethical onus posed by metadata falls primarily on the attorney who transmits the documents, and who has an ethical obligation to take reasonable precautions to preserve the client’s confidences. To this end, ABA Model Rule 1.6(a) mandates that “[a] lawyer shall not reveal information relating to the representation of a client” unless the client gives specific permission to do so, or unless other exceptions apply. Comment 16 to Rule 1.6 states that, “[a] lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer.” Also, Comment 17 states that “the lawyer must take reasonable precautions to prevent [transmitted communications] from coming into the hands of unintended recipients.” For example, Microsoft Word has features such as “Track Changes” and “Comments” that can be altered so that the reader is unaware of the identity of the commenter. Similar features in WordPerfect as well as in other Microsoft applications, such as PowerPoint and Excel, also contain these metadata hazards, as well as the means to avoid them. Lawyers who fail to take proper precautions to appropriately modify documents so that client confidences remain undetectable run the risk of breaching their ethical obligations.
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Staff Attorneys, IBLS Editorial Board