LawyersUSA

Whether a lawyer can peek at hidden "metadata" in electronic documents is an evolving issue, as states weigh in with ethics opinions that are all over the map.

"There have been an increasing number of opinions on the metadata issue just within the last year," said Andrew Perlman, a professor at Suffolk University School of Law in Boston and co-contributor to the legal ethics blog, www.legalethicsforum.com.

Metadata is hidden information embedded in electronic documents that can include a treasure-trove of information – the who, what, when and where of a document, as well as previously deleted versions – and can be readily mined with a few clicks of the mouse if the document has not been "scrubbed."

In the most recent ethics opinion on the issue, released in late March, the New York County Lawyers' Association said it is unethical to search for metadata if it appears to have been sent inadvertently, but the ruling does not apply to material produced during e-discovery.

The opinion indicates a shift toward a more "nuanced" approach and away from earlier state ethics opinions that simply either permit or bar mining metadata.

"This reflects what is becoming the majority view, but state bar associations are still split," said Professor David Hricik of Mercer University School of Law in Macon, Ga., who has written articles and lectured to lawyers on this subject.

The differing opinions leave lawyers uncertain about the risks of searching for metadata. This also means that attorneys in different states sending documents to each other by e-mail may not be playing under the same rules.

Alabama, Arizona and Florida have issued opinions saying that intentionally searching for metadata is unethical, while the District of Columbia makes metadata mining unethical only if the lawyer had actual knowledge that the metadata was inadvertently sent.

In 2006, the American Bar Association came out with an ethics opinion that permits searching of metadata in documents sent electronically from an opposing attorney. (ABA Formal Op. 06-442)

Similarly, the Maryland State Bar Association has said that there is nothing unethical about reviewing or using metadata contained in electronic discovery. (No. 2007-09)

And a Pennsylvania State Bar ethics opinion issued in January essentially leaves it up to each attorney based on his or her judgment, the nature of the information, common sense and professional courtesy. (No. 2007-500)

New York ethics opinion

The New York opinion says that while the sender has a duty of care to scrub documents before sending them, it would be unethical for the recipient to take advantage of a breach of this duty of care by intentionally searching for metadata.

However, it is limited to the transactional context, where lawyers are sending correspondence, contracts or other documents, back and forth – and doesn't apply to documents produced in e-discovery.

The opinion is a "step in the right direction," because it is not a one-size-fits-all rule, said Perlman.

However, it would make it unethical, for example, for a lawyer to search for metadata in an Excel spreadsheet from opposing counsel, even though the lawyer would arguably be conducting due diligence by mining the metadata, he added.

"It seems to me it would be quite expected for a lawyer to look at the formulas used, or who originally authored the spreadsheet, or whether it took into account sales figures on certain dates, but technically that's metadata," said Perlman.

The opinion "points out the difficulty for recipients" and "leaves a lot of gray area," said Steven Bennett, a partner at Jones Day in New York and chair of its e-discovery committee.

"How are you supposed to know if it was or was not an inadvertent transmission, or if it is or is not privileged?" asked Bennett.

But Hricik said: "The only reason you're going to look for metadata is because you know it's not supposed to be there."

Conflicting duties

The metadata issue cuts to the core of a lawyer's potentially conflicting duties of zealous representation, maintaining client confidences, and meeting the interests of justice and fair play.

State bar associations are struggling to decide how to balance these interests in the world of new technology, said Perlman.

Lawyers in states without an ethics opinion are "at great risk," said Hricik.

"You can't rely on the fact that the other side won't look, and you don't know whether it's ok to look, or whether you have a duty to look," he said.

Thomas Smith, a partner with K&L Gates in Pittsburgh and a founding member of the firm's E-Discovery Analysis & Technology Group, said that a lawyer who receives an electronic document that he knows or suspects contains metadata should perform a step-by-step analysis to determine whether he can mine and review it.

"The first decision is whether the metadata was intentionally produced, such as if a court ordered it to be produced or, in a non-litigation context, if both sides have agreed to track changes to documents," in which case you would be free to review the metadata, he said.

But if an attorney thinks the metadata was sent inadvertently, the next step is to look to an applicable ethics opinion or case law to see if it compels you to take certain steps or prohibits you from reviewing it.

"If you determine that you are not subject to any opinion prohibiting your review of inadvertently produced metadata, then you are entitled to look at it," Smith said.

If a lawyer starts to look at the metadata, then realizes it may be privileged, "a whole separate set of ethics opinions applies," he added, noting the general rule is to notify the sender of inadvertently produced privileged information.

ABA Model Rule 4.4(b) adds another twist, because while it says that a lawyer who receives a document that appears to be inadvertently sent must notify the sender, it does not say that the lawyer cannot read it.

However, not all states have adopted the ABA model rules.

Duty to scrub

The New York opinion and the ABA recognize the duty of the sender to make sure documents are scrubbed of privileged data.

Bennett suggested a more efficient rule might be to allocate the burden to the sender rather than the recipient.

"There's relatively simple software, something you strap on to your e-mail system, and before any e-mail goes out of the office, the system tells you it's scrubbed, unless you make a specific decision to send something unscrubbed," said Bennett, who noted that most large law firms have already installed such systems and incorporated them into their cost structures.

But Perlman said scrubbers are still "woefully inadequate," especially in discovery.

"I don't think you can say the burden is entirely on the sending attorney. Sometimes there are millions of documents involved and you can't expect lawyers to go through each individual document to be sure it's scrubbed of privileged metadata," said Perlman.

The bottom line is that the metadata issue will continue to plague lawyers.

"This is going to be an issue for a while. Even if you have really good software and fancy scrubbers, accidents are going to happen," said Hricik.

He added that many small firm and solo practitioners are "not anywhere near" where they should be in terms of understanding what metadata is and whether they are inadvertently sending it out.

New York County Lawyers' Association Committee on Professional Ethics, No. 738. March 24, 2008. Lawyers USA No. 9939863. Click here for the full text of the opinion.

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com