A few weeks ago I got cross-ways with the State of Alabama, based on a recent ethics opinion regarding the use of metadata. The issue arose based on a recent ABA opinion indicating that counsel had no ethical restrictions against viewing the metadata disclosed by opposing counsel. New York, Alabama, and potentially Florida, have decided the issue, at least through state bar ethics opinion, contrary to the conclusion reached by the ABA. At the suggestion of the respected Richard Carmody, I promised to address the New York state ethics opinion that the Alabama bar relied upon. Since the matter had to be largely cut out of the recent NYCLA presentation, due to time constraints, here we go...
The problem in New York actually stems from 2 different (and rapidly aging) ethics opinions. The first is Opinion 749 - 12/14/01. The background of the opinion discusses primarily two issues: 1) "sophisticated users" have the ability to "get behind" electronic documents and perhaps learn the author of the document or see previous drafts or comments on a document (citing to M. David Stone, "Deleting Your Deletions," PC Magazine November 20, 2000); and 2) the concern of counsel's use of "bugs" in email to trace the recipients and comments of the original email, so-called email "wire-tapping" (citing www.privacyfoundation.org/privacywatch, "E-Mail Wiretapping", posted February 5, 2001).
The 2001 opinion only topically addresses the former issue, and relied on the then existing cases and opinion regarding inadvertent disclosure. The opinion relies more heavily on phrases such as using technology to "surreptitiously obtain privileged or otherwise confidential information", or behavior involving "dishonesty, fraud, deceit or misrepresentation."
In the case of email wire-tapping, it is pretty easy to see that the earlier NY opinion is right on target. At the very least, as suggested by the opinion itself, such behavior probably violates federal law, such as the Electronic Communications Privacy Act, 18 USC sec2510 et. seq. Although I trust the security of email only about as far as I can trust my ex-wife, the issues relating to email wiretapping or email security seem to have taken on new dimensions post-Enron and post-9/11. At any rate, the the opinion, 6 years later, seems to lack the intellectual forward-thinking persona that New Yorkers like to rub in the faces of us mere mortals living down here on the South 40.
Fast forward to NY Opinion 782-12/8/04 on the topic of emailing client documents that may contain hidden data reflecting client confidences and secrets. The '04 opinion is at least better versed in the "buzz" words, but is lacking in substance. The short opinion starts with the premise that lawyers may not "knowingly" reveal client confidence or secrets, citing DR 4-101(B)(1). From there, the opinion takes a short hop to the conclusion that a lawyer must use reasonable care to prevent the inadvertent disclosure of the client's confidential information; and I quote (using my best Lewis Black impersonation), "Reasonable care, may, in some circumstances, call for the lawyer to stay abreast of technological advances and the potential risks in transmission in order to make an appropriate decision with respect to the mode of transmission. See N.Y. State 709 (1998)". Well, allow me to reply.
Finally, the '04 opinion advises receiving counsel that they have an obligation not to "exploit an inadvertent or unauthorized transmission of client confidences or secrets." Supporting this proposition is the earlier Opinion 749, concluding that the use of "computer technology to access client confidences and secrets revealed in metadata constitutes 'an impermissible intrusion on the attorney-client relationship...'".
Ethics opinions like this, and the inevitable proposed FRE 502, will certainly go a long way towards covering our collective behinds when it comes to revealing confidential information. I wonder though, how lenient judges will be when it comes to determining how reasonable one must be in taking "reasonable care" not to disclose privileged or confidential information. (Yes, I saw the headline that the judge in the Spokane Diocese bankruptcy denied the newspaper's motion to unseal certain documents, but I haven't read the opinion yet...).
Not to be out done, in September of 2006, the Florida bar proposed and Advisory Opinion 06-2 regarding the disclosure and "mining" of metadata. The proposed Florida opinion, although more well reasoned, reaches the same conclusions as, and indeed references in footnotes, the New York Opinions.
I am not sure of the status of this opinion, but did find one proposition that I can agree to without hesitation, "Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer."
C'mon New York. The rest of us seem to be following your lead... as usual. The attorney-client privilege is to be jealously guarded by the attorney, not opposing counsel, whether or not the bar is densely populated by "sophisticated users" of technology. Pull over to the side of the road for a moment, turn off the luxury sedan programmed by the smart key that remembers your height, weight, driving style and hot or cold beverage preference, turn off your GPS enabled IPhone with the zillion mega pixel camera and voice recognition calling, and engage in a quiet, zen-like reflection of what today's "sophisticated user" of technology will be asking us to do for them 6 days, 6weeks, 6 months and 6 years down the road. The old maxim that ignorance of the law is no defense is rapidly spreading to the land of technology.