Ethics Ruling Stops Short on Metadata Duty
We here at Legal Blog Watch have followed the various ethics rulings regarding lawyers' obligations with regard to metadata in legal documents that contains confidential information. (Metadata Snooping OK, ABA Rules; Metadata: Read at Your Own Risk; Another Ethics Ruling on Metadata.) Now another state bar ethics panel has weighed in on the issue, but it stops short of providing guidance on the key question of how a lawyer should handle confidential information discovered in metadata.
This latest opinion comes from the Professional Responsibility Section of the Vermont Bar Association. In Ethics Opinion 2009-1 (PDF), the section addresses the duties with regard to metadata of both the lawyer who sends a document and the lawyer who receives the document.
As to the sending lawyer, Vermont joins the virtually unanimous opinion of jurisdictions that have considered the question. "Lawyers who send documents in electronic form to opposing counsel have a duty to exercise reasonable care to ensure that metadata containing confidential information protected by the attorney client privilege and the work product doctrine is not disclosed during the transmission process." In other words, before you hit "send," scrub out the metadata.
As for the lawyer who receives a document from opposing counsel, ethics committees have taken opposite positions on what a lawyer should do. Some say unequivocally that a lawyer is ethically prohibited from searching for metadata in documents received electronically. Others say there is nothing in the ethics rules that would prohibit lawyers from searching for metadata. The Vermont opinion includes a summary of these other states' rulings.
Vermont sides with the latter view, concluding that nothing in the state's Rules of Professional Conduct would prohibit a lawyer from reviewing a received document "using any available tools." In fact, the opinion seems to suggest that lawyers have a duty to search for metadata. "A rule prohibiting a search for metadata in the context of electronically transmitted documents would, in essence, represent a limit on the ability of a lawyer diligently and thoroughly to analyze material received from opposing counsel."
But saying a lawyer can search for metadata only opens the door to the more important question of what the lawyer is to do if confidential information is discovered. Here, Vermont decides to punt. "Whether inadvertent disclosure of privileged information constitutes a waiver of the document's privileged status is a question of substantive law," the panel says. And because Vermont's courts have not decided the question, it isn't about to either. "It is beyond the scope of this Ethics Opinion to address what analysis the Vermont Supreme Court should adopt on the question of inadvertent disclosure."
That said, the panel does lay out one step a lawyer should take upon discovery of confidential information in metadata. "Vermont lawyers are subject to the obligation to notify opposing counsel if they receive documents that they know or reasonably should know were inadvertently disclosed." What happens then, the panel says, is for a court to decide.
Posted by Robert J. Ambrogi on October 9, 2009 at 01:00 PM | Permalink
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