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Washington State Bar Ethics Opinion says that lawyers may look at available metadata but are prohibited from using a program to obtain intentionally scrubbed information

Hello and welcome to this Ethics Alert blog which will discuss the recent Washington State Bar Association Advisory Opinion which addresses ethics issues related to confidential metadata in electronic documents sent and received by a lawyer.  The advisory opinion is Washington State Bar Ass’n Informal Op. 2216 (2012) and is attached.

The opinion addresses three issues related to metadata in electronic documents: (1) a lawyer’s obligation to protect metadata when transmitting electronic documents; (2) a lawyer’s obligation when receiving documents in which metadata has not been protected and is readily accessible; and (3) the propriety of a lawyer using special forensic software to recover metadata that is “not otherwise readily accessible through standard word processing software.”

Metadata is typically described as “information about information” which may be embedded in electronic documents and, if extracted, the metadata may provide important details about a document, such as the date of its creation, the author, and information about revisions.

The opinion refers to Washington Rules of Professional Conduct 1.6(a) (substantially similar to Florida Bar Rule 4-1.6(a)), which states that attorneys are prohibited from revealing information related to a representation without a client’s consent and states that a lawyer’s duty to act competently includes the obligation to ensure that any communications do not disclose any information related to a representation, particularly when such information is confidential or could reasonably lead to the discovery of confidential information.

According to the opinion, “(m)etadata 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,” therefore, 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 also states that a receiving lawyer has a duty to promptly notify the sender if the document has readily accessible confidential metadata, but is not prohibited from reading or required to return the document; however, a lawyer’s use of a program to access metadata that the sender has affirmatively tried to remove would violate lawyer ethics rules related to respect for the rights of third parties and constitute conduct prejudicial to the administration of justice.  “(T)he use of special software to recover…metadata that is not readily accessible does violate the ethical rules.”

Although the Washington Bar 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) (substantially similar to Florida Bar Rule 4-4.4(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) (substantially similar to Florida Bar Rule 4-8.4(d)).”   In addition, “(s)uch efforts would also violate the public policy of preserving confidentiality as the foundation of the attorney-client relationship.”

The opinion refers to an ABA survey of U.S. jurisdictions as of February 2012 which notes that the ABA and 14 other jurisdictions have issued ethics opinions addressing metadata and states that the most contentious issue is the propriety of forensically “mining” documents for metadata.  Ethics opinions from nine jurisdictions, including Florida (Ethics Op. 06-02), have stated that mining for metadata is inconsistent with a lawyer’s obligations under ethics rules (although the Florida ethics opinion does not directly state that it is unethical).  In addition to Florida, the states are Alabama, Arizona, the District of Columbia, Maine, New Hampshire, New York, Oregon, and West Virginia.

ABA Formal Ethics Opinion 06-440 and ethics opinions of the Maryland and Vermont Bars have found that metadata mining is permissible, although they do not address the issue of the use of special software to obtain information from a document in which the sender has affirmatively tried to remove metadata.  A Colorado ethics opinion found that mining for metadata was permissible; however, the opinion also stated that it would not be ethical to mine for metadata if the sender gave notice of an inadvertent transmission before the recipient began extracting the metadata.  Ethics opinions in Minnesota and Pennsylvania state that whether mining of metadata is ethical requires a case by case analysis.

The Washington Bar opinion also states that the sender also has a duty to take steps to insure that confidential client information is not transmitted to third parties and provides tips for safeguarding digital information, including disclosures “in formats that do not include metadata” such as hard copies, facsimiles, or PDF format, and metadata confirms that metadata can also be “scrubbed” from electronic documents by “using software utilities designed for that purpose”.

Bottom line: this opinion highlights a division in the existing ethics opinions which address lawyers’ ethical obligations related to mining and using metadata in documents received from the opposing party.  In Florida, Bar Ethics Opinion 06-02 states that a lawyer is required to inform the sender if he or she receives confidential information, including metadata, that was inadvertently sent and also questions the propriety of mining for metadata.  The opinion does not specifically address whether a lawyer’s use of commercial software to obtain metadata information that was intentionally scrubbed from the document is unethical.  As I have previously stated, Florida Bar Ethics Opinions are not binding but may be used by lawyers for guidance and mitigation if the lawyer relies on an opinion in good faith.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]

www.jac-law.com

 

 

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