Washington Informal Op. 2216 (2012)
Key Holding: Ethics rules permit a lawyer to view inadvertently disclosed metadata in an 'unscrubbed' electronic document, but not to use a program that uncovers metadata the sender has tried to remove.
Significance: The opinion highlights a split of authority on lawyer's professional obligations about hunting for and using metadata in documents they receive.
By Samson Habte
Lawyers may review readily accessible metadata that an opposing counsel unwittingly transmits in an electronic document but must not use sophisticated forensic software to extract such metadata from a “scrubbed” document, the Washington bar's ethics committee advised in a recent opinion (Washington State Bar Ass'n Rules of Professional Conduct Comm., Informal Op. 2216).
The sender has a duty to ensure that confidential information is not transmitted to third parties, and this includes metadata that reflects attorney-client communications and other information protected by the rule on confidentiality, the committee said.
The recipient's duty is to notify the sender that the document contains readily accessible metadata, but the recipient is not ethically obligated to stop reading it or to return the document, the committee added.
But the opinion draws the line at lawyers' attempt to dig up metadata that the sender has affirmatively tried to remove. Such conduct, the panel concluded, would violate the rules regarding respect for third parties' rights and conduct prejudicial to justice.
“Metadata” refers to nonvisible but easily discoverable information embedded in electronic documents. If extracted, it can reveal important attributes about a document such as the date of its creation, its authorship, and a chronological blueprint of editorial changes. In some instances this information can expose critical details that go to factual and legal strengths and weaknesses of a client's case, other ethics committees have observed.
The Washington opinion addresses three issues: (1) an attorney's obligation to protect metadata when transmitting electronic documents; (2) an attorney's obligation when receiving documents in which metadata has not been protected and is thus readily accessible; and (3) the propriety of the recipient's use of special forensic software to recover metadata that is “not otherwise readily accessible through standard word processing software.”
To work through these issues, the committee used three hypothetical scenarios aimed at demonstrating the potential implications of metadata-related discovery failures or lapses.
• Scenario 1: Lawyer A prepares a settlement proposal on a word processor. He circulates the document to attorneys in his firm who insert comments. The feedback includes details that shed light on the strengths and weaknesses of the client's position. Lawyer A does not scrub the metadata before sending the document to Lawyer B, who represents the opposing party. Lawyer B receives the document and uses standard word processing procedures to view the changes made to the document and the comments inserted into it.
• Scenario 2: Same facts as above except that shortly after opening the document, Lawyer B receives an urgent message from Lawyer A notifying him that the metadata had been inadvertently disclosed and asking him to delete the document without reading it.
• Scenario 3: Same facts as above except that Lawyer A made a reasonable effort to “scrub” the document before transmitting it. However, Lawyer B has a sophisticated forensic software program that is designed to circumvent metadata removal tools. Lawyer B is considering using this tool to extract the metadata that Lawyer A believed had been expunged.
Washington Rule of Professional Conduct 1.6(a) states that attorneys are prohibited from revealing information relating to a representation without a client's consent. A lawyer's duty to act competently thus includes an obligation to ensure that she does not disclose any information that is related to a representation, particularly when such information is protected or could reasonably lead to the discovery of protected information, the committee said.
“Metadata embedded in electronic documents that reflects attorney-client communications, attorney work product and/or other confidential information … falls squarely within the protections of RPC 1.6,” the committee said. Accordingly, it advised, an attorney engaged in an exchange of documents “must make reasonable efforts to ensure that electronic metadata reflecting protected information … is not readily accessible to the receiving party.”
The opinion provides tips for safeguarding digital information. Lawyers can make disclosures “in formats that do not include metadata”--including hard copy, fax, or PDF form--and they can “scrub” metadata from electronic documents “using software utilities designed for that purpose,” the committee said.
The committee emphasized the importance of taking steps to safeguard metadata before sending a document in its answer to the second scenario: A receiving attorney is under no ethical obligation to refrain from reading material containing readily accessible metadata even if the sender did not intend to disclose it. Nor do the rules require the receiving attorney to return the document, the opinion states.
What an attorney who receives material that she reasonably knows was inadvertently sent must do is to “promptly notify the sender” per Rule 4.4(b), the panel advised. “[T]he 'decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer' in consultation with the client,” it said.
Lastly, the opinion observed that a lawyer's use of high-tech tools to extract “scrubbed” metadata presents more serious ethics concerns than the nonexploitative recovery of “unscrubbed” and absentmindedly transmitted metadata.
Although ethics rules “do not explicitly prohibit [attorneys] from utilizing special forensic software to recover that is not readily accessible or has otherwise been 'scrubbed' … such efforts would,” the panel said, “contravene the prohibition in RPC 4.4(a) against 'us[ing] methods of obtaining evidence that violate the legal rights of [third persons].'”
Such action also would “constitute 'conduct that is prejudicial to the administration of justice' in contravention of RPC 8.4(d).” Moreover, the committee said that “such efforts would also violate the public policy of preserving confidentiality as the foundation of the attorney-client relationship.”
Accordingly, the committee opined that “the use of special software to recover … metadata that is not readily accessible does violate the ethical rules.”
The opinion notes that the ABA and 14 other bar organizations have published ethics opinions regarding metadata, most of which are listed in an ABA survey published online. A review of those opinions indicates that the most contentious issue is the propriety of forensically “mining” documents for metadata.
Ethics committees for the ABA and the Maryland and Vermont bars have deemed metadata mining permissible, although they appear not to address the use of special software to “unscrub” a document from which the sender has affirmatively tried to remove metadata.
A Colorado opinion also found uncovering metadata permissible but qualified this determination by stating that it would not be ethical to do so if a sender gave notice of an inadvertent transmission before the recipient begins extracting metadata.
Committees in two other jurisdictions--Minnesota and Pennsylvania--indicated that the ethical propriety of metadata mining is a fact-specific determination.
Nine jurisdictions have said that mining for metadata is inconsistent with a lawyer's obligations under the ethics rules. They are Alabama, Arizona, the District of Columbia, Florida, Maine, New Hampshire, New York, Oregon, and West Virginia.
Full text at http://mcle.mywsba.org/IO/print.aspx?ID=1664.
The ABA survey of ethics opinions addressing metadata, compiled by the Legal Technology Resource Center, is available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/metadatachart.html.
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