The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

NIU’S NORTHERN EXPOSURE
What to Do About Metadata: A Call to the Illinois State Bar Association for a Formal Ethics Opinion
By Joshua Austin

It is without question that advances in technology (e-mail, cellular phones, text messaging, instant messaging, electronic filing, etc.) have made the lives of lawyers easier in many regards—from information gathering to client communications, to shear speed in all aspects of the practice. However, it is equally unquestionable that such technological advancements can have "dramatic implications . . . and raise ethical issues" of which all lawyers must be aware.1

What is Metadata and What Does it Mean? Metadata is quite literally "data about data" 2 - however, this definition fails to properly inform attorneys as to what really constitutes metadata. One federal court has defined metadata and stated that it is data that describes "the history, tracking, or management of an electronic document" and can include "a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it)."3 Metadata can be found in any number of electronic documents and is removable by many different approaches, assuming one takes the time and effort to do so.4

Metadata is information or data not intended to be part of the final document. As such, "the ability to view metadata raises ethical questions for the sending attorney and the receiving attorney."5 These ethical quandaries stem from the already established Model Rules of Professional Conduct and, in this state, the Illinois Rules of Professional Conduct. Specifically, Rule 1.6(a) of the Model Rules of Professional Conduct states that "lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent" and Rule 1.6(a) of the Illinois Rules of Professional Conduct states that "a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure" (and unless necessary to prevent a client from committing an action that would result in death or serious bodily harm).

While both versions of Rule 1.6(a) are straightforward and clear on their face, neither specifically addresses what obligations an attorney has when technology is added to the equation. There is certainly an argument to be made that failure to scrub metadata from a document electronically sent to opposing counsel would be an ethical violation because it could result in the disclosure of confidential information such as tracked changes from co-counsel or the client.6 Illinois has taken no specific stand on whether this would be an ethics violation, however. The American Bar Association and a number of other states have taken affirmative stands. But they have taken different sides, leaving unclear what would and would not constitute an ethics violation in this context.

Metadata in Illinois. Illinois recently passed a new version of the Illinois Rules of Professional Conduct.7 While several changes have been made,8 including the addition of comments, the rules still fail to address metadata. This was a perfect opportunity for clarification of the rules on metadata for lawyers in Illinois, but unfortunately that opportunity was overlooked.

While Illinois has never dealt directly with the ethical obligations of attorneys in regards to the "transmi[ssion] [of] confidential information in document metadata"9, the Illinois State Bar Association has offered an ethical opinion on "inadvertent disclosure of confidential materials" in general.10 The opinion says, in pertinent part:

"A lawyer who, without notice of the inadvertent transmission, receives and reviews an opposing party’s confidential materials through the error or inadvertence of opposing counsel, may use information in such materials. A lawyer who knows of an inadvertent transmission before confidential materials of an opposing party have been opened and reviewed should return such materials without examination. A lawyer has a duty to advise a client that confidential information was inadvertently transmitted to and read by opposing counsel."

As Peter Mierzwa noted, "the opinion also allows for reviewing misdirected information received in good faith. Thus, under Rule 1.3, ‘a lawyer who receives misdirected material information in good faith has an obligation to disclose that information to the lawyer’s client just as any other information relevant to the client’s matter.’"11

Other Action Taken on Metadata. Multiple jurisdictions have taken affirmative approaches on the ethical duties of lawyers with respect to metadata via ethical opinions.12 Opinions can be found on both sides of the issue of metadata, namely whether attorneys "have an ethical duty to refrain from examining or utilizing metadata."13 New York and Florida have determined that it is unethical for lawyers to examine for, and use, metadata.14 The American Bar Association and Maryland, on the other hand, have both decided to allow lawyers to examine for, and use, metadata.15

New York. New York was the first jurisdiction to publish an opinion regarding ethical duties as they relate to metadata in 2001.16 New York then offered an additional opinion to expand its view on metadata in an opinion published in 2003.17 The initial opinion was passed down by the New York Committee on Professional Ethics, which found that viewing metadata via technology, or "mining for metadata" violated DR 1-102(A)(4) & (5) of the Code of Professional Conduct in the State of New York.18 According to Boris Reznikov, "[t]hese provisions of the Code, which are equivalent to ABA Model Rule 8.4, ban conduct ‘involving dishonesty or fraud’ that is ‘prejudicial to the administration of justice.’"19 So, the New York Committee determined that this very policy would be best upheld by ensuring that confidential information remained confidential, even electronically.

New York expanded on this viewpoint when its Committee on Professional Ethics published a second opinion stating that a"lawyer who uses technology to communicate with clients must use reasonable care with respect to such communication, and therefore must assess the risks attendant to the use of that technology and determine if the mode of transmission is appropriate under the circumstances."20 Therefore, a lawyer must exercise reasonable care when he or she transmits something electronically, in order to ensure that no confidential information is transmitted along with it. This opinion further reaffirmed the 2001 opinion in regard to not seeking out or using metadata.

Florida. Florida published a similar opinion on metadata in 2006, through the Ethics Department of the Florida Bar.21 In Florida, a lawyer’s duty when transmitting via electronic means is, like in New York, to exercise reasonable care. According to the Florida opinion, therefore, "[i]t is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect ... information contained in metadata, that may be included in such electronic communications."22 The opinion makes it quite clear that lawyers are not to examine for, or utilize metadata,23 and should a lawyer become aware that they have received metadata, they must notify the sending lawyer.24

The American Bar Association. The American Bar Association offered a formal opinion on metadata in 2006, disagreeing with the vanguard opinion from New York.25 While no specific duty with regards to the transmission of metadata was passed down by this opinion, options for eliminating metadata are offered. "Presumably, a lawyer’s general duties with regard to the confidentiality of client information under Rule 1.6 apply to metadata."26 Alternatively, the rules on examining for, or utilizing metadata and notifying the sending attorney are quite clear. An attorney may examine for (mine), or utilize metadata,27 but must notify the sending attorney once they become aware of such confidential information in the form of metadata if they know or should know that such transmission was inadvertent.28

Maryland. The Committee on Ethics from the Maryland State Bar Association published its opinion on Metadata in 2007.29 Unlike the American Bar Association, Maryland did articulate a duty for transmitting lawyers, that of reasonable care.30 Further, a receiving attorney may examine for, and utilize metadata in a received electronic document.31 Maryland strayed from the ABA opinion in regards to notification, and held that there is no duty in Maryland for a receiving lawyer to notify the sending attorney that metadata has been received. As noted by Joshua Poje, this opinion was due in large part to the fact that Maryland had not adopted Rule 4.4(b) of the Model Rules of Professional Conduct.32 Therefore, while holding a sending attorney to a reasonable care standard, Maryland nevertheless loosened the ethical obligations of attorneys receiving metadata so as to allow them to search out, and use metadata, without informing their adversaries.

Several states, as well as the American Bar Association, have recognized the need for clarification of the ethical obligations of attorneys as they relate to metadata. In light of this, it is important that the Illinois State Bar Association offer up an opinion on metadata so as to provide practicing attorneys with the necessary information to protect themselves from the misuse of metadata and electronic information.

Conclusion. This author feels that the proper solution is a combination of the opinions put forth by the jurisdictions that have already opined on the subject. First, there should be a duty of reasonable care to safeguard against the sending of confidential information, in large part because jurisdictions like New York have noted that "a lawyer who uses technology to communicate with clients must use reasonable care with respect to such communication, and therefore must assess the risks attendant to the use of that technology and determine if the mode of transmission is appropriate under the circumstances,"33 an ideology that Illinois should subscribe to as well. Additionally, in order to address the concerns of examining for, or using, metadata and obligations as to notifying the sending attorney of the reception of metadata, the Illinois State Bar Association should essentially apply Opinion 98-04 to metadata.34 What is more important than any particular option, however, is that Illinois take the initiative to tackle this problem head on so as to clarify this already convoluted issue for practicing attorneys.

1 David H. Bernstein & D. Peter Harvey, Ethics and Privilege in the Digital Age, Trademark Rep., Nov.-Dec. 2003. at 1240, 1240.

2 See Boris Reznikov, To Mine or Not to Mine: Recent Developments in The Legal Ethics Debate Regarding Metadata, Shider J.L. Com. & Tech., Spring 2008, at 13, 13; Peter Mierzwa, Young Lawyers Section: Metadata: Now You Don’t See It — Now You Do, 20 Cba Rec. 52, 52 (2006).

3 Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005).

4 One author has compiled a fairly in-depth list of examples of metadata in various documents and how to remove that metadata. Todd Flaming, Is Your Word Processor Telling Secrets to the Enemy?, Ill. B.J., June 2002, at 319, 319-20.

5 Mierzwa, supra note 3, at 53.

6 Mierzwa, supra note 3, at 53-54.

7 Ill. Rules of Prof’l Conduct (effective Jan. 1, 2010).

8 Christopher Bojean, Highlights from the New Rules of Professional Conduct, July 1, 2009, http://www.illinoislawyernow.com/2009/07/01/highlights-from-the-new-rules-for-professional-conduct/ (last visited Sept. 23, 2009).

9 Mierzwa, supra note 3, at 54.

10 See Ill. State Bar Assoc., Adv. Op 98-04 (1998).

11 Mierzwa, supra note 3, at 55.

12 As of June 17, 2009, twelve jurisdictions have issue opinions on lawyer obligations with regards to metadata: The American Bar Association, Alabama, Arizona, Colorado, Florida, Maine, Maryland, New Hampshire, New York, Pennsylvania, Washington, D.C., and West Virginia. Joshua J. Poje, Metadata Ethics Opinions Around the U.S., June 17, 2009, http://www.abanet.org/tech/ltrc/fyidocs/metadatachart.html (last visited Sept. 23, 2009).

13 Reznikov, supra note 2, at 15.

14 See N.Y. Comm. on Prof’l Ethics, Op. 749 (2001); N.Y. Comm. on Prof’l Ethics, Op. 782 (2004); Prof’l Ethics of the Fla. Bar, Op. 06-2 (2006).

15 See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-442: Review and Use of Metadata (2006), Md. State Bar Ass’n, Comm. on Ethics, Opinion 2007-092 (2006).

16 See N.Y. Comm. on Prof’l Ethics, Op. 749 (2001), See also Reznikov, supra note 2.

17 See N.Y. Comm. on Prof’l Ethics, Op. 782 (2004).

18 See N.Y. Comm. on Prof’l Ethics, Op. 749 (2001).

19 Reznikov, supra note 2, at 15 (citing N.Y. Comm. on Prof’l Ethics, Op. 749).

20 See N.Y. Comm. on Prof’l Ethics, Op. 782 (2004).

21 Prof’l Ethics of the Fla. Bar, Op. 06-2 (2006).

22 Id.

23 Id. ("It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender’s client that the recipient knows or should know is not intended for the recipient.")

24 Id. ("If the recipient lawyer inadvertently obtains information from metadata that the recipient knows or should know was not intended for the recipient, the lawyer must ‘promptly notify the sender.’")

25 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-442: Review and Use of Metadata (2006), available at http://www.pdfforlawyers.com/files/06_442.pdf.

26 Joshua J. Poje, Metadata Ethics Opinions Around the U.S., June 17, 2009, http://www.abanet.org/tech/ltrc/fyidocs/metadatachart.html (last visited Sept. 23, 2009).

27 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-442: Review and Use of Metadata (2006), available at http://www.pdfforlawyers.com/files/06_442.pdf (noting that the Committee "reads the recent addition of Rule 4.4(b) identifying the sole requirement of providing notice to the sender of the receipt of inadvertently sent information, as evidence of the intention to set no other specific restrictions on receiving lawyer’s conduct found in other Rules.").

28 This determination is actually found in Opinion 05-437 and is based again on Rule 4.4(b) as standing for the proposition that a "lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender" and "obligat[ing] the receiving lawyer to notify the sender of the inadvertent transmission promptly." ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 05-437 (2005).

29 Md. State Bar Ass’n, Comm. on Ethics, Opinion 2007-092 (2006).

30 Id. (noting that "absent an agreement with the other parties (such as is contemplated in proposed Federal [Rules] 16(b)(5) and (6)), the sending attorney has an ethical obligation to take reasonable measures to avoid the disclosure of confidential or work product materials imbedded in the electronic discovery" but not "every inadvertent disclosure of privileged or work product material would constitute a violation of Rules 1.1 and/or 1.6 since each case would have to be evaluated based on the facts and circumstances applicable thereto.").

31 Id. ("Subject to any legal standards or requirements (case law, statutes, rules of procedure, administrative rules, etc.), this Committee believes that there is no ethical violation if the recipient attorney (or those working under the attorney’s direction) reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata.")

32 Joshua J. Poje, Metadata Ethics Opinions Around the U.S., June 17, 2009, http://www.abanet.org/tech/ltrc/fyidocs/metadatachart.html (last visited Sept. 23, 2009). The Committee stated that Maryland "do[es] not require the receiving attorney to notify the sending attorney that there may have been an inadvertent transmittal of privileged (or, for that matter, work product) materials" but "the receiving attorney can, and probably should, communicate with his or her client concerning the pros and cons of whether to notify the sending attorney and/or to take such other action which they believe is appropriate." Md. State Bar Ass’n, Comm. on Ethics, Opinion 2007-092 (2006).

33 N.Y. Comm. on Prof’l Ethics, Op. 782 (2004).

34 See supra notes 24-28 and accompanying text.

Joshua Austin is currently a 3L at Northern Illinois University’s College of Law and is a Lead Articles Editor on the Northern Illinois University Law Review.

 
 
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