120804 NYEO, ETH 782

• Case Date: December 08, 2004
• Court: New York

ETH 782 Ethics Opinion 782 New York Ethics Opinion New York State Bar Association Committee On Professional Ethics December 8, 2004          (1-04)          Topic: E-mailing documents that may contain hidden data reflecting client confidences and secrets.          Digest: Lawyers must exercise reasonable care to prevent the disclosure of confidences and secrets contained in "metadata" in documents they transmit electronically to opposing counsel or other third parties.          Code: DR 1-102(A)(5), 4-101(B), (C), (D); EC 4-5.          QUESTION           DR 4-101(B) states that a lawyer shall not "knowingly" reveal a confidence or secret of a client. Does a lawyer who transmits documents that contain "metadata" reflecting client confidences or secrets violate DR 4-101(B)?          OPINION          Word-processing software commonly used by lawyers, such as Microsoft Word and Corel WordPerfect, include features that permit recipients of documents transmitted by e-mail to view "metadata," which may be loosely defined as data hidden in documents that is generated during the course of creating and editing such documents. It may include fragments of data from files that were previously deleted, overwritten or worked on simultaneously.1 Metadata may reveal the persons who worked on a document, the name of the organization in which it was created or worked on, information concerning prior versions of the document, recent revisions of the document, and comments inserted in the document in the drafting or editing process. The hidden text may reflect editorial comments, strategy considerations, legal issues raised by the client or the lawyer, legal advice provided by the lawyer, and other information.2 Not all of this information is a confidence or secret, but it may, in many circumstances, reveal information that is either privileged or the disclosure of which would be detrimental or embarrassing to the client. See DR 4-101. For example, a lawyer may transmit a document by e-mail to someone other than the client without realizing that the recipient is able to view prior edits and comments to the document that would be...