Ethics Committee Advisory Opinion #2008-09/04

By the NHBA Ethics Committee

ABSTRACT:

New Hampshire lawyers who either send or receive electronic materials share an ethical obligation to preserve confidential information relating to the representation of clients. It is impermissible for New Hampshire lawyers to seek to review or use metadata received from opposing counsel.

ANNOTATIONS:

Electronic materials sent and received by lawyers in modern law practices contain hidden information called “metadata,” which may contain confidential information relating to representation of a client. Both sending and receiving lawyers share ethical obligations to prevent disclosure of such confidential information.

Lawyers sending electronic materials to opposing counsel are ethically required to take reasonable care to avoid improper disclosure of confidential information contained in metadata, which might include appropriate training and education on reasonable measures that can be taken to reduce the likelihood of improper disclosure of confidential information through transmission of metadata. There can be no per se rule on what constitutes reasonable care in transmission of metadata, as the facts and circumstances of each case will dictate the reasonableness of protective measures taken by sending lawyers.

Receiving lawyers have an ethical obligation not to search for, review or use metadata containing confidential information that is associated with transmission of electronic materials from opposing counsel. Receiving lawyers necessarily know that any confidential information contained in the electronic material is inadvertently sent, triggering the obligation under Rule 4.4(b) not to examine the material. To the extent that metadata is mistakenly reviewed, receiving lawyers should abide by the directives in Rule 4.4(b).

This opinion does not address issues relating to the discovery of electronic materials in adjudicative proceedings, which are handled under applicable rules of court and law.

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This opinion was submitted for publication to the NHBA Board of Governors and was published in Bar News on May 15, 2009.

Advocate

Rule 3.3 Candor Toward the Tribunal

  1. A lawyer shall not knowingly:
    1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
    2. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
    3. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and comes to know if its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
  2. A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
  3. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
  4. The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Ethics Committee Comment
  1. New Hampshire’s Rule reverses the order of ABA Model Rules (c) and (d). This clarifies that a lawyer’s disclosure obligation during an ex parte proceeding applies even if the information provided to the tribunal would otherwise be protected by Rule 1.6.
  2. See Rule 3.9 regarding non-adjudicative proceedings.