Committee on Ethics, Ethics Docket No. 2007-09
Topics: metadata (set “in the context of litigation” but “general in nature”)
From the Opinion:
- When transmitting a document with metadata, “absent an agreement with the other parties (such as is contemplated in proposed Federal [Rules] 16(b)(5) and (6)), the sending attorney has an ethical obligation to take reasonable measures to avoid the disclosure of confidential or work product materials imbedded in the electronic discovery.” [But whether an “inadvertent disclosure of privileged or work product material would constitute a violation of Rules 1.1 and/or 1.6” must be “evaluated based on the facts and circumstances applicable thereto.”]
- On the issue of whether the recipient can review metadata, the Committee opines that “there is no ethical violation if the recipient attorney (or those working under the attorney’s direction) reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata.”
- On the issue of whether recipient must notify sender that metadata was found, the Committee opined that, because Maryland’s Rules of Professional Conduct had not been amended to include ABA Model Rule 4.4(b)*, then “the receiving attorney [is not required] to notify the sending attorney that there may have been an inadvertent transmittal of privileged (or, for that matter, work product) materials.” Nevertheless, the Committee stated that “the receiving attorney can, and probably should, communicate with his or her client concerning the pros and cons of whether to notify the sending attorney and/or to take such other action which they believe is appropriate.”
*Rule 4.4(b) of the Maryland Rules of Professional Conduct reads:
“In communicating with third persons, a lawyer representing a client in a matter shall not seek information relating to the matter that the lawyer knows or reasonably should know is protected from disclosure by statute or by an established evidentiary privilege, unless the protection has been waived. The lawyer who receives information that is protected from disclosure shall (1) terminate the communication immediately and (2) give notice of the disclosure to any tribunal in which the matter is pending and to the person entitled to enforce the protection against disclosure.”
Contrast that with a “Model Rules” jurisdiction as, for example, South Carolina, whose Rule 4.4(b) reads:
“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”
The full text is available at http://www.msba.org/members/ethics.asp
(MSBA Members Only)