The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has addressed the issue of a lawyer’s responsibilities regarding metadata in Formal Opinion 2009-100, Ethical Obligations on the Transmission and Receipt of Metadata. 

Metadata is information hidden in the files of electronic documents by word processing and other computer programs. If not properly filtered out of electronically transmitted documents, metadata can reveal embarrassing and potentially harmful information, such as what changes have been made in documents, who has edited or composed them, dates when the documents were prepared, and information which has been deleted from the documents.

Formal Opinion 2009-100 addresses the responsibilities of both sending and receiving lawyers.

The Committee concluded that an attorney has an obligation to avoid sending electronic materials containing metadata, where the disclosure of such metadata would harm the client’s interests.

In addition, an attorney who receives such inadvertently transmitted information from opposing counsel may generally examine and use the metadata for the client’s benefit without violating the Rules of Professional Conduct, assuming that the receiving lawyer did not obtain the electronic documents in a manner that was criminal, fraudulent, deceitful, or otherwise improper. Howevr, the Committee recognized that the substantive law governing whether the recipient may use the metadata received in legal proceedings or negotiations is outside the scope of the Opinion.

The Committee further stated that while no Pennsylvania Rule of Professional Conduct specifically addresses metadata, the Committee’s conclusion is consistent with the treatment of inadvertent communications under Rule 4.4(b).

Thus, the primary burden of keeping client confidences lies with the sending attorney: an attorney sending electronic materials has a duty of reasonable care to remove unwanted metadata consistent with Rule 1.1 (Competence) and Rule 1.6 (Client Confidentiality).

However, the receiving attorney, while potentially under duties to the client under Rules 1.1, 1.2, 1.3, and 1.4 to review, communicate and utilize such information, must, if the receiver knows or reasonably should know that the document was inadvertently sent, treat such metadata as an inadvertent communication under Rule 4.4(b) and promptly notify the sender of the receipt of the materials.

The Committee did a detailed analysis of the issue and the Formal Opinion should be reviewed by anyone facing these issues.

Formal Opinion 2009-100, Ethical Obligations on the Transmission and Receipt of Metadata