The Washington State Bar Association recently issued its Informal Op. 2216
(2012), discussing ethical issues relating to metadata in electronic documents
exchanged among counsel. As the 15th
state ethics body to do so, Washington is a little late to the party. The New York State Bar issued its Opinion
749 in December 2001. I’ve been
lecturing and writing about legal ethics and metadata even longer. See Luce,
What’s the Matter with Metadata, 36
Colorado Lawyer 113 (Nov. 2007).
(For those who prefer an outline format, here’s a link to the 2011
edition of my Metadata
Crib Notes.)
One might think that after 14 state and one ABA opinion, and
countless articles on the subject, Washington would have little to add. However, Opinion 2216 does make at least one thought-provoking
contribution, opining that, while “ethical rules do not expressly prohibit [lawyers]
from utilizing special forensic software to recover metadata that is not
readily accessible or has otherwise been “scrubbed” from the document”:
Such efforts would, . . . , in the opinion of this
committee, contravene the prohibition in RPC 4.4(a) against “us[ing] methods of
obtaining evidence that violate the legal rights of [third persons]” and would
constitute “conduct that is prejudicial to the administration of justice” in
contravention of RPC 8.4(d). To the extent that efforts to mine metadata yield
information that intrudes on the attorney-client relationship, such efforts
would also violate the public policy of preserving confidentiality as the
foundation of the attorney-client relationship.
The possibility that such “special forensic software to
recover metadata” exists, or will exist in the future, is hardly beyond the
pale. In 2006 AT&T’s lawyers uploaded
a brief from which they attempted to electronically expurgate certain
portions. Alas, the purportedly
expurgated portions were readily viewable with certain standard Apple
software. See AT&T Leaks Sensitive Info In NSA Suit (CNet
May 26, 2006).
However, most modern metadata scrubbers do a fine job
eradicating, not merely lining-out, the standard metadata found in most
documents attorneys might exchange, i.e.,
word-processing documents, e-mail messages and spreadsheets. Invoking RPC 4.4(a) and 8.4(d) against a
receiving attorney – especially in the same opinion that correctly recognizes
that the sending attorney has a duty to employ standard metadata removal
techniques – uses a questionably heavy bat to address a matter better governed protocols
of professionalism. It also muddies the
waters in the era of electronic discovery, for as Opinion 2216 recognizes: “in
the context of discovery production, where certain metadata may have
evidentiary value, RPC 3.4(a) specifically prohibits a lawyer from “alter[ing],
destroy[ing] or conceal[ing] a document or other material having potential
evidentiary value[,]” or assisting another person in doing so.”
Documents produced to opposing counsel, by definition, are
not privileged. Attempting to reapply
some level of privilege to deeper layers of electronic documents is an
analytically dubious and erroneous as a matter of both interpretation of the
Rules of Professional Conduct and policy.
Washington’s Opinion 2216 makes this wrong turn, as others have before
it, apparently because it takes pity on the sending lawyer who, under the
opinion’s hypothetical, took no steps to scrub comments from an agreement which
includes “comments . . . about the terms of the agreement, as well as the
factual and legal strengths and weaknesses of the client’s position.”
Let’s not mince words: In 2012, an attorney who sends or uploads such
a document without employing standard metadata scrubbing techniques commits malpractice
and violates, at a minimum, RPC 1.1 (competence) and 1.6(a)
(confidentiality). As a matter of
policy, the onus must be on the
sending attorney to employ basic scrubbing procedures which are cheap and
readily available.
A basic tenant of legal competence is a rudimentary
understanding of the tools of the trade, especially where a shortcoming may
have disastrous consequences for one’s client.
Attorneys who are unable or unwilling to learn computing basics, such as
how to scrub a document of metadata before sending it to counsel for an adverse
party, should exercise professional judgment by either delegating such tasks or
staying away from computers. When it
comes to the simple task of metadata scrubbing, the time for coddling Luddite
lawyers is long, long, past.
