Lawyers today routinely send and receive documents via email. While email correspondence has arguably reduced the amount of time and energy spent circulating documents, it has led to new ethical dilemmas for lawyers sending and receiving such communications. Significant ethical concerns may arise from the use of documents by lawyers containing electronically embedded information, commonly referred to as “metadata”.
Metadata, quite simply, is data about data. It can be used to uncover and review information about a document’s editorial history. For example, metadata may reveal deleted text, comments inserted in a document, the identity of individuals who have edited or viewed the document, and/or the dates and times they reviewed it.
Duty to Refrain from Examining Metadata
The American Bar Association (ABA) Model Rules of Professional Conduct do not specifically address a duty to refrain from examining metadata. However, Model Rule 4.4(b) governs the question of inadvertently sent documents. Rule 4.4(b) mandates that attorneys who receive inadvertently sent documents “promptly notify the sender,” but the rule does not provide any guidance about electronically embedded information.
The ABA recently issued an opinion concluding that lawyers do not have an ethical obligation to refrain from examining or utilizing metadata under Model Rule 4.4(b) or any of the Model Rules.1 Therefore, the opinion recommends that lawyers take steps to guard against disclosure of metadata. The Ohio Supreme Court has not yet spoken to the issue of a lawyer’s duty to refrain from examining metadata.
Duty to Guard Against Disclosure
Regardless of its form, metadata may contain confidential material, and lawyers have an ethical obligation to ensure that they do not reveal their clients’ confidential information. Lawyers can avoid ever creating some types of metadata by refraining from using redline functions. Tech-savvy attorneys may “scrub” some kinds of embedded information using widely available computer software programs. Lawyers may also guard against inadvertent disclosure of confidential metadata by sending a hard copy of the document via facsimile, or scanning the document into a pdf file before emailing it.