Metadata still remains a huge and often misunderstood topic. Since my article Metadata – What Is It and What Are My Ethical Duties? was published in the Oklahoma Bar Journal on November 8, 2008, I've already had several people contact me and say "Wow, I didn't know anything at all about that. Thanks." When you write something for publication, you want everyone to read it. But this is something that I believe everyone needs to read and understand, whether you agree with my point of view or not. The legal ethics piece may be particular to lawyers, but everyone needs to know about metadata. Now that the article is online, take a moment to e-mail this link to lawyers you think might not be aware of the legal ethics issues relating to metadata.
Update: Of course, as soon as my article went to press covering every single legal ethics opinion about metadata, a new one had to emerge. You may want to read the article first before reading the following paragraphs.
On October 21, 2008, the Maine Board of Overseers of the Bar released Maine Ethics Opinion #196. This opinion arrives at two conclusions:
- Without authorization from a court, it is ethically impermissible for an attorney to seek to uncover metadata, embedded in an electronic document received from counsel for another party, in an effort to detect confidential information that should be reasonably known not to have been intentionally communicated.
- A sending attorney has an ethical duty to use reasonable care when transmitting an electronic document to prevent the disclosure of metadata containing confidential information.
Point 2 is now largely a consenus opinion of the jurisdictions that have opined on the issue. It is certainly "good law" and good practice. Point 1 adopts the theory of several jurisdictions that lawyers are prohibited by our ethics rules from looking at certain types of data that everyone else can freely view. At least the authors insert an intent element so that it is clear some examining of metadata is OK, like looking at the formulas in a spreadsheet to make sure they are accurate. I do not disagree with the lofty sentiments and high goals, but question the practicality of this view.
Authors of the more recent ethics opinions have the benefit of being able to review the prior work that well frames the issues. As I noted in my article, Colorado in Formal Opinion 119 adopts the view that there is nothing wrong with looking at metadata. But if you stumble across confidential information, you must immediately notify opposing counsel so that you can agree how to handle it or either of you can go to court for guidance or relief. I note this because the Maine opinion specifically criticizes this approach as "a complex and perhaps impractical set of requirements for the parties," while hinting that one would have to be a computer genius to fully understand metadata anyway.
Opinions still differ about legal ethics and metadata. Links to all of the ethics opinions that are publicly available online appear at the end of my article.