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Metadata and an attorney’s duties
Metadata and lawyers
Metadata and a lawyer’s duties.
Ethics Opinion No. 259
On November 29, 2012, the Mississippi Bar issued Ethics Opinion No. 259 regarding metadata in documents prepared by a lawyer.
(1) An attorney must take reasonable precautions to make sure that confidential metadata is not inadvertently revealed by an electronic document.
(2) An attorney may not actively search for confidential metadata in an electronic document received from another attorney.
What documents are covered by the Opinion?
Opinion 259 applies to electronic documents that are voluntarily provided by one attorney to another attorney. Metadata contained in electronic documents provided in response to discovery requests or pursuant to a subpoena are not covered by the Opinion and are subject to applicable court rules.
The rationale for part (1) of the Opinion comes from Rule 1.6, which imposes a duty on a lawyer to maintain a client’s confidence.
The rationale for part (2) of the Opinion comes from Rule 8.4(c) and (d) which, respectively, prohibit a lawyer from engaging in dishonest conduct and conduct prejudicial to the administration of justice.
The Committee explained that “mining metadata is analogous to an attorney searching an opponent’s unattended briefcase during a deposition break or using a listening device when an opposing attorney confers with his client in an adjoining room.”
Exceptions to the lawyer’s duty in handling metadata.
The Committee does not believe that the Rules prohibit lawyers from passive use of metadata. For example:
- A lawyer in possession of multiple drafts of a document wanting to determine the most recent version should not be prohibited from sorting the files by creation or modification date, which may be done by a simple click of a mouse when viewed using the “details” view in the operating system.
- Similarly, lawyers collaborating on the language of a single document, such as a final settlement and release or a commercial loan agreement, should not be prohibited from using the “track changes” features contained in all modern word processing programs in order to propose, accept, and reject language to arrive at a final agreement.
- A third example of common passive use of metadata would be observing formulas contained in spreadsheets such as Excel. A lawyer should not be prohibited from looking at the primary input line, simply because the lawyer may discover the formula used to arrive at a number contained in a spreadsheet’s cell.
If you are concerned that confidential metadata concerning you or your business has been disclosed, call the Panter Law Firm at 601-607-3156 for a consultation.
Craig Painter
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