Legalethics.com

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.

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

Blacking out text doesn’t erase it. But a plaintiff’s firm suing GE in a $500m class action didn’t realize that… and put a whole slew of GE confidential information in the public domain as a result. Read about it here.

What if the United States government is authorized to review electronic data that leaves the country. Does that mean that there is any reasonable expectation of privacy, or any Fourth Amendment protection, over that data? That is a huge issue, as you can imagine, and a suit now seeks this:

declaratory judgment and equitable relief in order to gain certainty about whether the electronic transmission of data from the United States to Acumen India waives Fourth Amendment protection with respect to the data that is electronically transmitted. It seeks this declaration knowing that foreign nationals who reside overseas lack Fourth Amendment protections. It seeks this declaration having been informed, through published materials, that the United States Government engages in pervasive surveillance of electronically transmitted data wherein one party to the transmission is a foreign national residing overseas.

The amended complaint in Newman McIntosh & Hennessey, LLP v. Bush, here, alleges that President Bush has the “view” that it’s not illegal to monitor this data. Amazing world we live in.

Another opinion, this one from the New York County Bar Association, suggests that lawyers should not look for metadata (again, we’re not talking in the discovery context).  The opinion is here.

You can read about another lawyer-to-reporter instead of lawyer-to-lawyer e-mail 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.

David Hricik and Chase Scott have published a thorough piece on where most common software creates metadata, available here in the February 2008 Georgia Bar Journal.

There’s a story here about an e-mail that a lawyer intended to send to his lawyer, but ended up going to a reporter… who just happened to have the same last name.

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.”

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.”

I don’t think this is on-line, but in an August 8 opinoin (07-02), the Iowa State Bar Association Committee on Ethics and Practice Guidelines addressed an interesting prospective client problem:  the lawyer has a personal contact with a prospective client, gains confidences, but while in the process of deciding whether to take the case, he receives an unsolicited e-mail from the party that the prospective client needs to sue.  The e-mail discloses confidences, too.

The opinion concluded that whether the lawyer encouraged the communication was the critical question:  “Did the lawyer say or do anything that enticed or prompted the potential client to contact the lawyer and transmit confidential information.”  Emphasizing that the question was difficult to answer, the Iowa opinion said that whether the lawyer had to keep the e-mail confidential turned on (1) all of its communicaiotn to see if it could “be interpreted to create a reasonable expectation that the lawyer or law firm was willing to discuss the possibility of representation” and (2) determine if the firm said or published anything “that would lead a reasonable person to believe that they could give or share factual or other confidential information with the lawyer without” first establishing an attorney-client relationship.  If both questions were answered yes, the lawyer or law firm would be disqualified.  It concluded by recommending “some form of notice” about confidentiality.