Ethics

There are two new ethics opinions on metadata, one from New Hampshire (New Hampshire Bar Ass'n Ethics Comm., Op. 2008-2009/4, 4/16/09) and another from Pennsylvania (Pennsylvania Bar Ass'n Comm. on Legal Ethics and Professional Responsibility, Formal Op. 2009-100).

Unfortunately, both bar associations restrict access to their opinions.  The New Hampshire Bar used to publish its opinions on its web site, but for reasons that escape me, the Bar now restricts access to members.  Can someone from either bar association explain why you would want to make it more difficult for lawyers to engage in conduct that you believe is ethical?  We've blogged about this problem before (here), and I don't think we've ever received a very good answer, except that it's just the way that it has always been done.

In any event, New Hampshire concluded that lawyers should not look at metadata, equating it to eavesdropping.  Pennsylvania, by contrast, concluded that reviewing metadata is generally permissible, and in some cases, may even be required.  The Pennsylvania opinion follows up on earlier opinion that did not offer detailed guidance about how to handle the receipt of metadata.  (The May 13, 2009 edition of the ABA/BNA Lawyers' Manual on Professional Conduct offers a description of both opinions.)

The opinions also address the ethical obligations of attorneys who disseminate electronic documents, stressing that lawyers need to take reasonable precautions to ensure that they do not inadvertently disclose metadata containing privileged information.