Ethics Opinion 782
New York Ethics Opinion
New York State Bar Association Committee On Professional Ethics
December 8, 2004
E-mailing documents that may contain hidden data reflecting
client confidences and secrets.
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.
DR 1-102(A)(5), 4-101(B), (C), (D); EC 4-5.
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)?
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...