Email,Electronic Transmissions

When an attorney transmits documents, the attorney has a duty to take reasonable precautions to ensure that confidential information contained in metadata is removed prior to transmittal. A New York State Bar opinion held that an attorney has “a duty… to use reasonable care when transmitting documents by e-mail to prevent the disclosure of Metadata containing client confidences or secrets.” NY Eth. Op. 782 (2004). 

One of the concerns is about sending a final draft to the opposing counsel where metadata has not been removed. The opposing counsel may be able to track the different stages of document modification. In his article titled “The Hidden Perils of Metadata,” David L. Brandon, Esq.[2] reported the story of an attorney who sent a final draft to the opposing counsel, which included the most favorable language for the attorney’s client. This final draft was prepared with an old agreement used for another client as a model. The attorney had changed the names and added modifications pertinent to the specificities of this case. Because certain provisions required the client’s input, comments or questions were inserted directly into the body of the document, and some paragraphs were highlighted. This draft was sent to the client via email. The client used redlines to make some changes in the document. After several emails and drafts, the attorney prepared a final draft and sent it via email to the opposing counsel, not realizing that the opposing counsel could use metadata to uncover all of the modifications and comments made in the draft prior to its final version.

This kind of disclosure can jeopardize the entire negotiation of an agreement or at least cause an attorney’s client to lose the benefits of some of the best legal recommendations that the attorney had hoped to obtain on behalf of his client. 

It is important that the attorney have a formal policy regarding the handling of electronic transmissions, including educating employees and clients. A document should not be sent to a client without a metadata removal if the attorney used a draft from another client. And, of course, any documents sent to opposing counsel should be screened for metadata. Transforming a Microsoft Word document into a PDF (Portable Document Format) file will not remove the metadata. Several software options are available on the market to remove metadata from any document. Attorneys should be aware that as technology advances, even unsophisticated users will be able to find metadata intentionally or unintentionally.

Another ethical question is whether an attorney who receives a document can search it for metadata. Some jurisdictions have imposed an affirmative duty on lawyers to refrain from searching for metadata.[3]Because of the evolution of technology, it is uncertain what other jurisdictions’ positions may ultimately become. A simple internal procedure of removing metadata with affordable software may be viewed as a basic attorney obligation to protect client’s information.