Legalethics.com

Vermont Bar Association Professional Responsibility Section Opinion 2009-1 concluded that a lawyer could “search” for metadata, but may have an obligation to notify the sender of the existence of the metadata pursuant to Rule 4.4(b)

In Russo v. Takata Corp., _ N.W.2d __ (S.D. 2009) after a person who became a juror was summoned, but before being seated as a juror, the person ran some Google searches pertaining to seatbelts made by the defendant in a wrongful death action. The verdict was set aside for juror misconduct.

New Hampshire attorneys may not search for, review, or use metadata in electronic materials received from opposing counsel. New Hampshire Bar Ass’n. Ethics Comm., Op 2008-2009/4 (April 16, 2009)

Pennsylvania lawyers who receive electronic content from opposing counsel can examine metadata hidden in documents and use it for the client’s benefits. Pennsylvania Bar Ass’n, Comm. on Legal Ethics and Professn’l. Responsibility, Formal Op. 2009-100

The Florida Supreme Court rejected the state bar’s proposed rule amendments on lawyer web site advertising. See In re Amendments to teh Rules Regulating the Florida Bar - Rule 4-7.6, Computer Accessed Communications (Feb 27, 2009).

The New York Rules of Professional Conduct effective April 2009. Additional Professional Standard resources are available from teh State Bar.

The New York State Bar Association concluded that lawyers could use gmail and comply with the duty of confidentiality despite the fact that email is ’scanned’ by Google to place contextual ads. The committee warned that this sort of unthinking, automated review was proper, but not human review. N.Y. St. B. Ass’n. Comm. Prof. Eth. Op. 820 (Feb. 8, 2008).

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.

The case, from the West Virginia Supreme Court, is here. There’s a story about it 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.

Effective January 1, 2008, New Hampshire adopted a rule that clearly protects persons who, in good faith, e-mail confidential information to a lawyer from having the lawyer use the information against the prospective client.  The comments to New Hampshshire Rule 1.18 provide in part: “In its version of these provisions, New Hampshire’s rule eliminates the terminology of ‘discussion’ or ‘consultation’ and extends the protections of the rule to persons who, in a good faith search for representation, provide information unilaterally to a lawyer who subsequently receives and reviews the information.  This change recognizes that persons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection.”

The rule no doubt makes it more important for NH lawyersto use effective disclaimers on their web pages.

In Pa. B. Ass’n Comm. on Legal Ethics & Prof. Responsibility Formal Op. No. 2007-100 (2007), the committee in a thoughtful opinion addressed the complex issues of locating, finding, and giving to a client its “file” when e-documents, e-mail, and other digital data is involved.  Unfortunately, the opinion is only available for members of that state’s bar, or on Westlaw, at 2007 WL 1170779.  The opinion contains some useful language that lawyers might want to consider in their engagement letters to avoid later disputes about how much work the lawyer must engage in to find e-mail and other digital information if the client requests its file.

Arizona’s bar association in Opinion 07-03 (Nov. 2007) concluded that, while lawyers must use reasonable care to “scrub” metadata from out-going documents, a recipient must generally avoid looking for inadvertently included metadata, but instead generally must notify the sender of the inclusion of metadata.

As noted elsewhere here, the question of whether it is ethical to look for metadata in a document e-mailed among opposing counsel has split the bar associations.  Pennsylvania recently issued opinion 2007-500 (not available on line, but at 30 Pa. Law. 46 and on westlaw).  After surveying those opinions, the committee concluded that “it would be difficult to establish a rule applicable in all circumstances and that consequently the final determination of how to address the inadvertent disclosure of metadata should be left to the individual attorney and his or her analysis of the applicable facts.”