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Attorney E-Newsletter

January 2007

E-Mail, Part 2: Some Additional Cautions

In last month's newsletter, we discussed some of the ethical issues presented by the use of email in legal work. Subscriber Micah Buchdahl, Esq., who advises attorneys on marketing issues and teaches programs on marketing ethics compliance for the Pennsylvania Bar Institute, writes to remind us that the Rules of Professional Conduct are not the only limitations on electronic advertising. He notes, "Besides all the traditional advertising rules under 7 that need to be followed, there are also the CAN-SPAM federal statutes (while not bar ethics, the opt-in and anti-spam rules need to be kept in mind) and the numerous problems that can stem from participating in or running blogs and chat rooms." Attorneys considering use of these options should thoroughly familiarize themselves with the evolving body of law regarding electronic communications, as well as with the requirements of the Rules of Professional Conduct.

Metadata: What's In Your Document?

The age of computing has revolutionized the practice of law, as it has many fields, and has provided lawyers with new tools and opportunities for getting their work done and communicating easily and quickly. However, there are risks that can cause embarrassment or worse to the unwary lawyer. One of these is metadata.

Metadata is information that is embedded in computer-generated documents by the software, which can reveal information the writer did not intend to show in the document. Metadata can reveal such information as who has edited or commented on a document, when it was created, what changes have been made in the document, and how much time was spent on it. This information can be very significant in litigation. For instance, a lawyer might file a pleading in electronic format, unaware that it contains confidential information revealing that allegations were amended, parties or claims were added or subtracted, and when the pleading was created or edited. The pleading may have been adapted from a template or form, or a document filed in another case. Discovering such hidden information may be as simple as using a few commands within the software, or it may involve sophisticated detection by tech-savvy opponents using specialized software. All Microsoft Office applications (Word, Excel and Powerpoint) and WordPerfect create files that may contain such metadata.

Lawyers who share documents through e-mail or electronic filing need to be aware of the existence of metadata and the risks of inadvertent disclosure. Some techniques for controlling access to metadata are fairly simple, such as turning off certain features in the software (such as "fast save" in Microsoft Word) or converting documents into formats which do not contain metadata such as text files or Portable Document Format (PDF) files (although Adobe Acrobat PDF files may also contain information which is not visible under ordinary examination). Some law offices use "metadata scrubbers" such as Metadata Assistant by Payne Consulting, EZ Clean by Softwise Consulting, and Workshare Protect by Workshare.* Microsoft also offers an add-in utility for Office XP and 2003 editions, which adds metadata removal capability to the applications.

The place of metadata in legal work has been the source of some controversy, most notably in Florida. On December 16, 2005, the board of the Florida Bar voted to adopt a resolution deploring the practice of examining electronic documents for metadata. This was at the urging of its President, after an opposing firm dissected a brief his firm had filed, and found embarrassing and confidential information embedded in the file. However, this position is not universally accepted within the bar. Some more tech-savvy Florida lawyers disputed the bar's position, arguing that metadata mining is as legitimate and proper as having documents reviewed by a documents examiner for the clues they contain about the origins of the document. It is argued that their duty of zealous representation of their clients permits and requires them to perform such examination and to use the results. In September, the bar adopted a formal Ethics Opinion 06-2 in which it concluded that a lawyer sending an electronic document has a duty under Rules 1.1, 1.2, 1.4, and 1.6 to take care to assure that confidential information is not revealed by metadata. If a lawyer receives such a document containing such information, he or she has a duty to notify the sender under Rule 4.4(b) and to refrain from looking for or using such information. The opinion specifically exempts the role of metadata in documents produced under discovery.

However, the ABA took a contrary position in its Formal Opinion 06-442 (August 5, 2006):

The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party. A lawyer who is concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata, may be able to limit the likelihood of its transmission. By "scrubbing" metadata from documents or by sending a version of the document without the embedded information the lawyer reduces or removes the potentially harmful consequences of its dissemination.

The production of documents containing metadata through discovery is another whole area of the law, which is beyond the scope of this brief discussion. Lawyers should realize that there are cases in which parties have litigated the claim of whether documents produced in discovery may be stripped of metadata, or whether they must be produced in their original form. See, for example, Williams v. Sprint, 230 F.R.D. 640, 96 Fair Empl.Prac.Cas. (BNA) 1775, 62 Fed.R.Serv.3d 105 (D-Kansas, 2005), and Wyeth v. Impax Laboratories, Inc., No. Civ.A. 06-222-JJF (D. Delaware, Oct. 26, 2006). A revision to Rule 34(b), F.R.C.P., effective December 1, 2006, states that unless requested otherwise, "A party who produces documents for inspection shall produce them . . . as they are kept in the usual course of business..."

Clearly, the issue of metadata is one of which practitioners will be hearing much in the future. Lawyers must be aware of their obligations both in sending and receiving electronic documents potentially containing metadata.

More information is available at the following Web sites:

*Note: The Disciplinary Board has not tested and does not endorse or recommend any of these products. Links are included in this newsletter only for subscribers' information and investigation.

We Got Ink

The January/February issue of the Pennsylvania Lawyer magazine, a publication of the Pennsylvania Bar Association, has two articles on the disciplinary system. "Passing Judgment," by Helen Roth Vanston, relates the author's experience and perspectives from her years of service on one of the Hearing Committees of the Disciplinary Board. "Opening the Process," by Don Sarvey, examines the aftermath of certain changes in the disciplinary system, including the opening of disciplinary proceedings to the public and the creation of an option of discipline by consent. The articles are available online to members of the Pennsylvania Bar Association at www.pabar.org.

Tip of the Month: Check Those Liens

Disbursing money to a client or a pro se litigant? Be sure to do a child support check first. Under an amendment to 23 Pa. C.S.A. §4308.1, effective September 5, 2006, an attorney (that's you) disbursing any monetary award of $5,000 or more must take steps to determine whether the recipient owes any child support liens. This includes obtaining a statement under penalty of perjury setting forth the party's name, address, date of birth, and Social Security number; checking that information against listings of overdue child support orders on the Web site of the Pennsylvania child support enforcement system, www.childsupport.state.pa.us; and satisfying any unpaid liens before making disbursement. The requirements of this provision are too extensive to summarize here, so look before you cut the check.