on, no digging for it. All they had to do was open the document
and they would find interesting and useful information staring
them in the face. Think tracked changes as an example. Now
here’s the kicker, no one was saying anything to anyone in order
to keep the information coming. After all, this is a gift that
keeps on giving. “Enough already.” I don’t think so.
Again With the Metadata?
Enough Already!
By Mark Bassingthwaighte
I have been writing and lecturing about metadata for years. (And
in case you have forgotten, metadata is the “hidden” information
about the electronic documents we create that we’re all supposed
to be worried about.) I guess for some of late, I’ve run on with
the topic long enough because a few have started to say, “enough
already.” Then this happened.
Earlier this year I was on the road visiting a dozen or so law
firms over the course of two weeks and learned several attorneys
at two different firms were routinely emailing documents out to
other attorneys without first removing the associated metadata.
Making matters worse, in many instances the attorneys who were
in receipt of these documents didn’t have to do anything to view
the metadata. In other words, there was no metadata mining going
Let’s talk ethics for a minute. There are basically two issues
in play when it comes to metadata. The first is an attorney’s
obligation to maintain client confidences, some of which can
be metadata-based. There is no exception in the confidentiality
rule that says an attorney needn’t worry about maintaining
client confidences if an electronic document is in use. This is
why firms routinely require that all electronic documents be
either scrubbed clean of metadata or converted to a pdf format
prior to sending. Our professional conduct rules mandate this
outcome. In fact, I can assure you the two firms where the above
mentioned problem attorneys practice have such a rule in place.
The second, and in my mind more interesting issue, concerns the
viewing of metadata. At its most basic, if an attorney receives
electronic documents with associated metadata intact, may the
attorney view it? Suffice it to say that the issued ethics opinions
on the subject run the gamut. Some opinions state it’s fine to
take your advantages where you find them. At the other extreme
you will find ones that say nope, can’t do it. But here’s where it
gets interesting. If you read the opinions that come down on the
side of saying an attorney should not view metadata, you often
find an analysis that mirrors the analysis used with opinions
issued over misdirected faxes back in the day. You find terms
including the likes of inadvertent disclosure driving the analysis,
which takes me back to my story.
I can imagine that some of you reading this might be troubled
by the story above. The fact that no attorney was willing to
do the right thing and speak up seems so unfair. After all,
the attorneys who sent the documents were simply unaware.
Apparently they didn’t understand what metadata was all about,
ALPS Risk Manager Mark Bassingthwaighte, Esq., has conducted more than 1,000 law firm risk management
assessment visits, presented numerous continuing legal education seminars throughout the United States, and
written extensively on risk management and technology. Check out Mark’s recent seminars to assist you with
your solo practice by visiting our on-demand CLE library at alps.inreachce.com. Mark can be contacted at
[email protected].
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THE GAVEL