Sept. 19, 2012 – Recently, Wisconsin joined at least 15 other states with published opinions on lawyers’ ethical obligations relating to “metadata,” the embedded and sometimes hidden information contained within electronic documents.
In Wisconsin Formal Ethics Opinion EF-12-01, “The Transmission and Receipt of Electronic Documents Containing Metadata,” the State Bar of Wisconsin’s Professional Ethics Committee discusses obligations of the transmitting and receiving lawyer, as well as other responsibilities under Wisconsin’s Rules of Professional Conduct for Attorneys (Rules of Professional Conduct).
For instance, the opinion highlights lawyers’ duty to detect and remove materially significant metadata before sending an electronic document, whether lawyers receiving electronic documents may actively “mine” for metadata (and whether they are actually compelled to search for it), and what receiving lawyers must do if they uncover significant metadata.
The opinion makes clear that obligations under Wisconsin’s Rules of Professional Conduct do not take precedence over state or federal discovery rules.
What is Metadata?
Often described as “data about data,” metadata is the embedded information contained within electronic documents that describes the document’s history, tracking, and management. Characteristics such as title, date, and author of a document are revealed by metadata.
But metadata can also contain information about modifications or deletions previously made to a document that were not intended to be revealed or disclosed. Because lawyers routinely send and receive electronic documents, the existence of metadata gives rise to ethical obligations to ensure that such documents do not contain metadata that is potentially damaging to clients.
“The revelation of such metadata could result in the disclosure of confidential information, legal strategies and theories, attorney work product or lawyer-client communications,” according to Ethics Opinion EF-12-01. Such disclosures can give rise to ethical violations.
Wisconsin Solo and Small Form Conference
Programming related to metadata, ethics, and protecting confidential client information is scheduled for the Wisconsin Solo and Small Firm Conference (WSSFC), Oct. 25-27, at the Chula Vista Resort in Wisconsin Dells.
Visit the WSSFC webpage to view the schedule and to register for the event. The WSSFC is hosted by State Bar PINNACLE® with the Milwaukee Bar Association, a founding co-sponsor, along with and other major sponsors and exhibitors. Related topics include:
Working in the Cloud: Ethics Surrounding Cloud Based Practices; Security Issues and Steps You Can Take to Make Sure You are Protecting Your Clients' Confidential Information (1.0 CLE). Presenter: Mindy J. Rowland.
What Confidentiality Really Means: Sorting Out the Difference Between Confidentiality, Privilege, and Loose Talk (1.0 CLE) (EPR). Presenters: Marc J. Adesso, Timothy J. Pierce.
Obligations of the Transmitting Lawyer
Attorneys have a duty of confidentiality, which prohibits disclosure of information relating to the representation of a client without the client’s informed consent.1
The duty also prohibits disclosures that do not directly reveal protected information “but could reasonably lead to the discovery of such information by a third person.”2 In addition, a lawyer’s duty of competence requires proper safeguards to prevent disclosure of confidential information.3
Ethics Opinion EF-12-01 states that the duties of confidentiality and competence “require lawyers to stay reasonably informed about the types of metadata that are included in electronic documents they generate and take steps, when necessary, to remove the metadata.”
Not all metadata must be removed, and in some situations, lawyers may intend to include metadata or be required by law to refrain from “scrubbing” documents, the opinion explains.
“Lawyers, however, must be cognizant of when the metadata contained within a document is of such importance that the lawyer is ethically obliged to prevent disclosure,” states the opinion, which notes that metadata should be removed whenever it is “reasonably foreseeable that metadata contained within a document may be relevant and detrimental to the client.”
This means lawyers must learn how to detect and remove potentially detrimental metadata, or obtain the assistance of someone who can help detect and remove it.
In most instances, attorneys can avoid transmitting detrimental metadata by deleting it through “scrubbing” programs, converting documents to Portable Document Format (PDF), or sending scanned or faxed versions. Metadata removal (“scrubbing”) software tools include:
In addition, State Bar Practice Management Advisor Nerino Petro has noted that many electronic document programs have built-in metadata removal tools. For instance, in MS Word 2010, select File > Info > Check for Issues > Inspect Document, and then select Remove All.4
Obligations of Receiving Lawyer
Ethics committees in states such as Arizona, Maine, and New York conclude that lawyers have an ethical obligation to refrain from intentionally mining for metadata. However, ethics committees for the American Bar Association, Colorado and Vermont do not condemn the practice. Other ethics committees view the issue as one to be made on a case-by-case basis.
These differences are reflected in the Wisconsin opinion. According to EF-12-01, a significant minority of Wisconsin’s Ethics Committee members believe that Wisconsin’s Rules of Professional Conduct, as currently drafted, “either prohibit searching for metadata, or at a minimum, do not clearly permit it.”
But a majority “does not believe that the Rules prohibit Wisconsin lawyers from searching for metadata in documents received from opposing counsel or third parties.”
Thus, the opinion states that: “[I]t is the opinion of the majority of the Committee that Wisconsin’s Rules [of Professional Conduct] do not prohibit lawyers from searching for and reviewing metadata included in an electronic document. A lawyer who searches an electronic document for metadata does not violate Wisconsin’s Rules.”
Obligations of Receiving Lawyers if Metadata Appears Confidential
If an electronic document contains information that was sent inadvertently, the receiving lawyer’s only duty is to inform the sender, according to EF-12-01.
Other jurisdictions believe that receiving lawyers violate ethical rules if they know that metadata was sent inadvertently, but keep reviewing it without consulting the sending attorney first, or review confidential metadata after notification of the inadvertent transmission.
But Wisconsin’s Ethics Committee does not agree with those positions. “[T]he majority of the Committee does not believe that a lawyer engages in dishonest or deceitful behavior by reviewing inadvertently sent metadata, even if he or she has actual knowledge that the information was inadvertently sent prior to reviewing the information,” EF-12-01 states.
Also, according to EF-12-01, receiving lawyers need not abide by a sending lawyer’s instructions regarding inadvertent transmission, explaining that “the only ethical obligation imposed on lawyers upon receipt of an inadvertently sent document is the duty to notify the sender.”
Additionally, a lawyer’s duty to notify the sending lawyer of inadvertent transmissions relating to the representation of the sending lawyer’s client does not apply to irrelevant or insignificant metadata. The duty only applies to metadata of “material significance,” and receiving lawyers should assume such transmittals were inadvertent if related to the representation.
“[L]awyers should normally assume that any information that is relevant and the disclosure of which is potentially detrimental to the sending party to fall within this category,” the opinion explains. “[T]he only requirement imposed by the Rules is that an attorney must promptly notify the sender if he or she receives materially significant information. …”
Is there a Duty to Actively Search Documents for Metadata?
Lawyers have a duty to provide clients with competent representation,5 but this duty does not require lawyers to actively search documents for metadata, according to EF-12-01.
“[T]here should be no reasonable basis for an attorney to conclude that any specific document would contain significant metadata,” the opinion states.
Thus, the duty to provide clients with competent representation “does not compel Wisconsin attorneys to actively search documents for metadata.”
According to EF-12-01, lawyers who transmit electronic documents must take reasonable steps to detect and remove potentially damaging metadata under the Rules of Professional Conduct.
Receiving lawyers who actively search documents for metadata do not run afoul of the rules of professional conduct. However, receiving lawyers have a duty to notify the sender if they uncover “materially significant” metadata related to the representation of a client.
For more information, contact Tim Pierce at the ethics hotline at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m. to 5 p.m.
Joe Forward is the legal writer for the State Bar of Wisconsin.
1 SCR 20:1.6(a).
2 SCR 20:1.6 [Comment 4].
3 SCR 20:1.1; see also SCR 20:1.6 [Comment 16].
4 If you are using Microsoft Office 2003, the metadata removal tool can be downloaded from http://www.microsoft.com/downloads/details.aspx?FamilyID=144e54ed-d43e-42ca-bc7b-5446d34e5360&displaylang=en.
5 SCR 20:1.1.