LawyersUSA

Another state bar association has weighed in on the emerging issue of whether it's unethical for lawyers to look at hidden "metadata" in electronic documents they receive.

The issue is a growing concern, and several states and the American Bar Association are split over whether metadata – hidden data that detail historical information and earlier drafts of an electronic document – should be off-limits. (See "States are minding lawyers who mine metadata," Lawyers USA, May 19, 2008. Search terms: Hricik and metadata.)

In the latest ruling, the Colorado Bar Association said that "there is nothing inherently deceitful or surreptitious" about metadata mining, and that in general a lawyer may ethically search for metadata in electronic documents received from opposing counsel or third parties. (Ethics Opinion 119.)

If the receiving lawyer knows or reasonably should know the metadata contains confidential information, he or she should assume it was sent inadvertently and must notify the sender – but the lawyer is not prohibited from continuing to review the metadata, the opinion said.

However, if prior to examining the metadata, the receiving lawyer is notified by the sender that confidential information was accidently included, he or she must not look at the metadata.

"What I like about the Colorado opinion is that it recognizes a variety of circumstances under which a lawyer has the right to review metadata [that] may be perfectly relevant or critical to a case and appropriate to review," said Andrew Perlman, a professor of professional responsibility at Suffolk University Law School in Boston.

The opinion also emphasized that "the ultimate responsibility for control of metadata rests with the sending lawyer."

For example, it noted that a sending lawyer can take steps to "scrub" files of metadata, avoid creating metadata in the first place, or in some cases, print out documents to make absolutely sure no unseen data is transmitted.

"Lawyers really need to make themselves familiar with new technology and take precautions in light of it, otherwise they are opening themselves up to potential malpractice claims," said Perlman, a co-contributor to the blog www.legalethicsforum.com.

Daniel Siegel, an attorney and president of Integrated Technology Services, a legal technology consulting firm in Havertown, Pa., expects the opinion will generate more disputes.

"The Colorado approach seems to vary based upon the relative technical skills and expertise of attorneys and their support staffs, rather than create a more definitive line that attorneys, even those who are not tech-savvy, can easily understand," he said.

The opinion is similar to ethics opinions issued by the ABA and the Maryland and D.C. Bar Associations.

Alabama, Arizona, Florida and the New York State and County bars, on the other hand, have come out the other way, finding that it is generally unethical to search for metadata.

Pennsylvania staked a middle ground by saying it depends on a number of circumstances, such as the type of information and the individual attorney's judgment.

Ethics Committee of the Colorado Bar Association. Disclosure, Review and Use of Metadata, No. 119. May 17, 2008. Lawyers USA No. 99310165. Click here for the full text of this opinion.