Legalethics.com

Another opinion, this one from the New York County Bar Association, suggests that lawyers should not look for metadata (again, we’re not talking in the discovery context).  The opinion is here.

You can read about another lawyer-to-reporter instead of lawyer-to-lawyer e-mail here!

Effective January 1, 2008, New Hampshire adopted a rule that clearly protects persons who, in good faith, e-mail confidential information to a lawyer from having the lawyer use the information against the prospective client.  The comments to New Hampshshire Rule 1.18 provide in part: “In its version of these provisions, New Hampshire’s rule eliminates the terminology of ‘discussion’ or ‘consultation’ and extends the protections of the rule to persons who, in a good faith search for representation, provide information unilaterally to a lawyer who subsequently receives and reviews the information.  This change recognizes that persons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection.”

The rule no doubt makes it more important for NH lawyersto use effective disclaimers on their web pages.

David Hricik and Chase Scott have published a thorough piece on where most common software creates metadata, available here in the February 2008 Georgia Bar Journal.

There’s a story here about an e-mail that a lawyer intended to send to his lawyer, but ended up going to a reporter… who just happened to have the same last name.

In Pa. B. Ass’n Comm. on Legal Ethics & Prof. Responsibility Formal Op. No. 2007-100 (2007), the committee in a thoughtful opinion addressed the complex issues of locating, finding, and giving to a client its “file” when e-documents, e-mail, and other digital data is involved.  Unfortunately, the opinion is only available for members of that state’s bar, or on Westlaw, at 2007 WL 1170779.  The opinion contains some useful language that lawyers might want to consider in their engagement letters to avoid later disputes about how much work the lawyer must engage in to find e-mail and other digital information if the client requests its file.

Arizona’s bar association in Opinion 07-03 (Nov. 2007) concluded that, while lawyers must use reasonable care to “scrub” metadata from out-going documents, a recipient must generally avoid looking for inadvertently included metadata, but instead generally must notify the sender of the inclusion of metadata.

As noted elsewhere here, the question of whether it is ethical to look for metadata in a document e-mailed among opposing counsel has split the bar associations.  Pennsylvania recently issued opinion 2007-500 (not available on line, but at 30 Pa. Law. 46 and on westlaw).  After surveying those opinions, the committee concluded that “it would be difficult to establish a rule applicable in all circumstances and that consequently the final determination of how to address the inadvertent disclosure of metadata should be left to the individual attorney and his or her analysis of the applicable facts.”

The DC Bar issued ethics opinion 341 concerning the review and use of metadata. ”A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client.”

I don’t think this is on-line, but in an August 8 opinoin (07-02), the Iowa State Bar Association Committee on Ethics and Practice Guidelines addressed an interesting prospective client problem:  the lawyer has a personal contact with a prospective client, gains confidences, but while in the process of deciding whether to take the case, he receives an unsolicited e-mail from the party that the prospective client needs to sue.  The e-mail discloses confidences, too.

The opinion concluded that whether the lawyer encouraged the communication was the critical question:  “Did the lawyer say or do anything that enticed or prompted the potential client to contact the lawyer and transmit confidential information.”  Emphasizing that the question was difficult to answer, the Iowa opinion said that whether the lawyer had to keep the e-mail confidential turned on (1) all of its communicaiotn to see if it could “be interpreted to create a reasonable expectation that the lawyer or law firm was willing to discuss the possibility of representation” and (2) determine if the firm said or published anything “that would lead a reasonable person to believe that they could give or share factual or other confidential information with the lawyer without” first establishing an attorney-client relationship.  If both questions were answered yes, the lawyer or law firm would be disqualified.  It concluded by recommending “some form of notice” about confidentiality. 

“Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of e-mail messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account.”  U.S. v. Forrester, __ F.3d __ (9th Cir. July 6, 2007).  The court held the information was not protected.

The Sixth Circuit, in a panel decision with three separate opinions, on July 6, 2007 held that plaintiff attorneys who feared that their e-mail and telephone conversations were being intercepted pursuant to the infamous “Terrorist Surveillance Program” lacked standing to challenge the constitutionality of this program.  ACLU v. Nat’l Sec. Agency, __ F.3d __ (6th Cir. July 2007).  The 65-pages of opinion are hard to condense, but in the majority’s view, the only way you have standing to challenge an unconstitutional surveillance program is to show that your rights, in fact, have been violated.  Given that the government won’t say who it’s monitoring…

There’s an interesting piece here discussing the blogs of secretaries, paralegals, and other law firm employees. This is an interesting issue and one that may be flying below many firms’ radars.

In the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm website must hold the information in confidence, even if the lawyer declines the representation.  Massachusetts Bar Opinion 2007-01.The opinion also addresses whether the lawyer’s firm can represent a party adverse to that prospective client.

This ABA CPR Metadata Powerpoint is a product of Michael Downey, Karen Phillips, and David Hricik.