Hidden threat: Lawyers cautioned on potential ethical pitfalls of metadata

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There’s a potential ethical threat lurking in electronic documents.

Metadata — defined as embedded information contained in electronic documents that describes the document’s history, tracking and management — and the discovery and handling of such are the subject of a recent of a nine-page formal opinion from the State Bar of Wisconsin’s Professional Ethics Committee.

“Much of the metadata compiled in the creation of an electronic document is irrelevant, such as changes correcting a simple spelling error,” opinion EF-12-01 states. “Some of the information, however, may have the potential to be damaging if it is shared with opposing counsel. The revelation of such metadata could result in the disclosure of confidential information, legal strategies and theories, attorney work product or lawyer-client communications.”

The opinion

The committee’s opinion concluded that with regard to transmitting documents, whenever it’s reasonably foreseeable that metadata contained within them may be relevant and detrimental to a client if disclosed to a third party, lawyers must take steps to remove the metadata, to preserve client confidences under SCR 20:1.6(a).

They also should familiarize themselves sufficiently, the opinion states, with the technological means to detect and remove, when necessary, metadata — or consult with someone else possessing that knowledge.

With regard to the ethical obligations of attorneys on the receiving end, the opinion observed that there’s a split among jurisdictions.

A majority of Wisconsin’s committee said the rules don’t prohibit Wisconsin lawyers from searching for metadata in documents received from opposing counsel or third parties.

However, given the split, the opinion cautioned that Wisconsin attorneys who appear in other jurisdictions should be aware that the rules of some courts obligate a lawyer receiving metadata to cease reviewing it until consulting with the sending party, and to then follow that party’s instructions as to its disposition.

“Because it is difficult to shield oneself from information once discovered,” the opinion states, “a deliberate search for metadata by a lawyer appearing before such a tribunal could be interpreted as courting a violation of SCR 20:3.4(c), which prohibits the knowing violation of a tribunal’s rules.”

The Wisconsin committee additionally determined that lawyers who discover immaterial metadata in a document have no obligation to bring that to opposing counsel’s attention.

However, lawyers who discover metadata of material significance must notify the sender. “Material significance” includes information about legal strategies, settlement parameters, communications between lawyer and client, previously undisclosed relevant facts and information that contradicts previously asserted facts.

The opinion concluded there’s no rule compelling Wisconsin attorneys to actively search documents for metadata.

Implications

Attorney Bruce Olson, of ONLAW Trial Technologies in Appleton, said the opinion could be the start of tackling a lawyer’s level of tech savvy.

“It’s a strong statement that senders have to use appropriate caution to strip out the metadata in one form or another,” Olson said. “That implies that lawyers need to be technology savvy in order to meet their duty of competency under the ethics rules. And I think that has broader implications beyond this particular ethics opinion. It’s the beginning of an acknowledgement of that fact.”

With the opinion’s release, Wisconsin joins 16 other jurisdictions that have spelled out attorneys’ obligations when it comes to removing metadata.

Attorney Dean Dietrich, a longtime ethics committee member, said the opinion was the product of a great deal of study and debate.

“The committee saw that there was a split among the states and wanted to make sure that the topic was vetted properly and fully,” he said. “The biggest debate was whether a lawyer had an ethical duty to mine the document as part of the duty of zealous representation — and concluded that the lawyer does not.”

The resulting opinion, overall, takes a middle-of-the-road approach, Dietrich said.

“It is hard not to say that the lawyer has to look at metadata if it is known to exist and that the lawyer has to take every possible precaution to avoid the sending of a document that has metadata in it,” he said.

Steps to take

Olson said the safest route to eliminate all metadata from Word documents or Excel spreadsheets, for example, is to print a document, scan it, then save it as a PDF file before sharing it with opposing counsel or third parties.

It’s a suitable option for attorneys who don’t regularly share drafts, he said.

But, for those who do, Olson said, metadata scrubbing programs can be a wise investment. He has experimented with Workshare Protect and Metadata Assistant, the latter of which easily allows users to run a quick report that indicates what, if any, metadata is going with a document.

Olson said he assumes similar software products have similar functionality.

“They’re inexpensive,” he said, “so it makes sense to invest in them and avoid the malpractice risk, now that we have this formal ethics opinion.”

Such programs can help remind attorneys, he said, of potential ethical missteps with metadata.

“They key is remembering that there’s another step in the process before sending an email [attachment],” Olson said. “It means you need to pause and think. With these programs, a window pops up asking if you want to send something with the metadata.”