In November, we noted an ethics opinion: "No ‘Web Bugs’ on E-mail to Opposing Counsel, Bar Panel Says." Now comes a related story – tied to when providing metadata is NOT allowed. (And, similarly, considering the different scenarios – those when reviewing receiving counsel should review metadata vs. definitely should not.):
"Lawyers Beware: Sending Native File Documents to Third Parties May Violate Your Ethical Obligations" --
- "Frequently, a party must produce electronic documents, such as Word documents, in their native format, rather than producing paper copies, in response to discovery requests; this obligation includes producing the document’s metadata, the data automatically embedded in an electronic file that contain information about the document, such as its origin and history of revisions. But what are a lawyer’s responsibilities concerning the transmission or receipt of metadata outside of the discovery context? A recent ethics opinion from the State Bar of Texas offers some guidance—and a stern warning: attorneys risk violating state rules of professional conduct if they mishandle metadata."
- "The Professional Ethics Committee for the State Bar of Texas recently concluded that a lawyer must take “reasonable measures” to avoid transmitting metadata containing a client’s confidential information to persons to whom such confidential information shouldn’t be disclosed. See Professional Ethics Committee for the State Bar of Texas, Opinion No. 665, at 2 (Dec. 2016). This obligation, according to the committee, springs from two duties imposed under Texas rules of professional conduct: the duties of competence and confidentiality. Id."
- "These professional duties are not unique to Texas, so it is unsurprising that other states similarly require attorneys to handle metadata carefully... But not every state has formally addressed the issue, and those that have taken it up have adopted different rules regarding the obligations of an attorney who receives electronic documents containing metadata."
- "The answer to avoiding ethical violations by the recipient of metadata is less straightforward given the different state rules. Recipients who take a better-safe-than-sorry approach by ignoring metadata in all instances might not be choosing the right course, as failing to thoroughly review documents obtained from opposing counsel could itself be a violation of an attorney’s duties of competence and diligence. See, e.g., Vermont Bar Association Professional Responsibility Section, Opinion No. 2009-1 (2009). Attorneys, therefore, must carefully review the rules in their own state. Failure to do so could have significant consequences."