Legalethics.com

Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.

Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!

In Formal Opinion 2008-1 (July 2008), the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York addressed various issues concerning the organization, delivery, and the ability to charge clients for delivery of electronic files after the end of a representation.  An earlier Wisconsin opinion on the same subject is here.

Colorado has addressed whether lawyers can review metadata sent by opposing counsel outside the context of discovery. The summary states:

A Sending Lawyer who transmits electronic documents or files has a duty to use reasonable care to guard against the disclosure of metadata containing Confidential Information. What constitutes reasonable care will depend on the facts and circumstances. The duty to provide competent representation requires a Sending Lawyer to ensure that he or she is reasonably informed about the types of metadata that may be included in an electronic document or file and the steps that can be taken to remove metadata if necessary. Within a law firm, a supervising lawyer has a duty to ensure that appropriate systems are in place so that the supervising lawyer, any subordinate lawyers, and any nonlawyer assistants are able to control the transmission of metadata.

A Receiving Lawyer who receives electronic documents or files generally may search for and review metadata. If a Receiving Lawyer knows or reasonably should know that the metadata contain or constitute Confidential Information, the Receiving Lawyer should assume that the Confidential Information was transmitted inadvertently, unless the Receiving Lawyer knows that confidentiality has been waived. The Receiving Lawyer must promptly notify the Sending Lawyer. Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred. In some instances, the lawyers may be able to agree on how to handle the matter. If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.

If, before examining metadata in an electronic document or file, the Receiving Lawyer receives notice from the sender that Confidential Information was inadvertently included in metadata in that electronic document or file, the Receiving Lawyer must not examine the metadata and must abide by the sender’s instructions regarding the disposition of the metadata.

The full opinion, No. 119 (May 17, 2008) is here.

Another opinion, this one from the New York County Bar Association (New York County Lawyers’ Ass’n Comm. of Professional Ethics, Op. 738 (March 24, 2008)), suggests that lawyers should not look for metadata (again, we’re not talking in the discovery context).  The opinion is here.

The DC Bar issued ethics opinion 341 concerning the review and use of metadata. ”A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client.”

Nassau County Bar Association Ethics Opinions are available online.

While an lawyer’s communication with a prospective fee-paying client in the mass disaster victims Internet chat room is not a prohibited solicitation such communication is improper as it is delivered to a prospective client whom the attorney knows may not have the requisite emotional or mental state to make a reasonable judgment about retaining counsel. See COPRAC opinion 2004-166

Assuming that relevant law does not prohibit the recording, there are two categories of circumstances in which attorneys generally should be ethically permitted to engage in surreptitious recording or to direct surreptitious recording by another. See Formal Ethics Opinion 112 (July 19, 2003).

D.C. ethics opinions are available online.

The ABA offers summaries of recent formal ethics opinions issued by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility.

Alabama Formal Ethics Opinions are available online.

The Alaska Bar Association offers ethics opinions online.

Mississippi Ethics Opinions are available online.

Minnesota Ethics Opinions are available online.

Michigan ethics opinions are available online.