Bar News - May 15, 2009
Metadata in Electronic Materials: Disclosure, Review and Use
Ethics Committee Opinion 2008-2009/4
In light of the current technology used to transmit legal information, attorneys need to be well-informed regarding the ethical parameters which should govern such transmissions. The following is a brief summary of the ethics opinion recently issued on this subject, taken from the text itself. The opinion can be found in its entirety at www.nhbar.org.
“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, including 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 electronic materials subject to discovery or subpoena under applicable rules of court or law….
The Committee’s view is that both sending and receiving lawyers share ethical obligations to preserve confidential information relating to representation of clients and that it is impermissible for New Hampshire lawyers to seek to review or use metadata received from opposing counsel.”