Metadata: the Ethics Trap That Could Get You in Trouble

Most people, including lawyers, are at least broadly aware that whenever a document is created, something exists behind the scenes that tracks information related to the creation, editing, and general handling of the document. That "something" is called metadata, and although it's wonderful for engineers and accountants, it can be hell for attorneys. Here, we go over some of the basic considerations all attorneys must think about when handling client files.

Malpractice Suit Just Waiting to Happen

Metadata is data about the data -- the files you are handling and manipulating. You don't see it, but it's there. And this is why it could be the bane of many lawyers. Because metadata is hidden from day-to-day view, "out of sight, out of mind" takes over for the grand majority of attorneys who either blissfully forget that metadata transmits information to anyone who has access to the file. That's how metadata that could fall into issues with client privilege. What kind of data does metadata carry? Metadata tracks who, when, and how a particular file was last handled, modified, edited, etc. It's a treasure-trove of information -- including information that might expose potential privileged information from client to attorney (or vice-versa) that a client would rather keep confidential. If anything particularly damaging gets out, it could end up compromising a client's case and may even earn you a complaint with the state bar.

The Shifting Views of Metadata

Up until a few years ago, the general view by one of the more prominent ethics sources in the country (The New York State Bar Association's Committee on Professional Ethics) was that the onus of keeping sensitive material confidential was on the recipient of files loaded with metadata (pretty much all editable files). In so doing, the CPE largely relied on the honor of lawyers not to snoop into metadata to divine information that might otherwise compromise the confidences of opposing counsel and their clients. That was outlined in CPE's Opinion 749. Over time, however, responsibilities have shifted -- shifted onto the sender. See Opinion 782 for further guidance. Tools are now available to deal with the task of purging metadata from files. But all of them have their drawbacks and those that cost -- cost.

Don't Dismiss Metadata

The broad takeaway is that metadata is no longer something that many attorneys can simply dismiss as being on the fringes of com-tech. Lawyer have to be pretty fluent these days in technology, and a good portion of that alacrity in tech will have to be devoted to keeping client communications and other sensitive material nice and confidential. Related Resources:

• Lawyers and Metadata: Navigating an Ethical Minefield (FindLaw's Technologist)
• Cops Search Computer for Defamatory Statements -- About Their Police Chief (FindLaw's Technologist)
• Law's Technology Leaders Can Be Found in Corporate Legal Departments (FindLaw's Technologist)
• Has Social Media Committed International Terrorism? (FindLaw's Technologist)