Last week, the West Virginia Bar added its two cents to the increasingly populated world of legal ethics metadata opinions. The opinion addresses the obligations of both the sender and the recipient of electronic documents.
With regard to the sending lawyer, the opinion concludes that a lawyer must take reasonable precautions when handling and transmitting electronic documents to avoid the inadvertent disclosure of protected metadata. The opinion offers some suggestions in this regard, including the use of metadata scrubbers.
The opinion then goes on to describe the recipient's obligations, explaining that "if a lawyer has received electronic documents and has actual knowledge that metadata was inadvertently sent, the lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work-product or confidences." (citing the New York State Bar opinion on the issue). If, however, the recipient is not sure whether the disclosure was inadvertent, the lawyer is encouraged (though apparently not required) to seek clarification from the sender before reviewing the metadata.
With regard to the sending lawyer, the opinion concludes that a lawyer must take reasonable precautions when handling and transmitting electronic documents to avoid the inadvertent disclosure of protected metadata. The opinion offers some suggestions in this regard, including the use of metadata scrubbers.
The opinion then goes on to describe the recipient's obligations, explaining that "if a lawyer has received electronic documents and has actual knowledge that metadata was inadvertently sent, the lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work-product or confidences." (citing the New York State Bar opinion on the issue). If, however, the recipient is not sure whether the disclosure was inadvertent, the lawyer is encouraged (though apparently not required) to seek clarification from the sender before reviewing the metadata.
So here's the updated score card. Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia have concluded that lawyers typically shouldn't be allowed to look at metadata (absent consent or other authorization). In contrast, Maryland, the D.C. Bar, Colorado, Pennsylvania, and the ABA have concluded that it is usually permissible for a lawyer to review metadata.
