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NYCLA Issues Ethics Opinion 738: A Lawyer May Not Ethically Search
An Adversary’s Metadata in Electronically Sent Correspondence
MARCH 26, 2008 – NEW YORK, NY – The New York County Lawyers’ Association’s (NYCLA) Professional Ethics Committee has issued an opinion concluding that it is unethical for a lawyer to search for metadata in correspondence, contracts or other documents sent electronically to opposing counsel. The opinion does not address electronic documents in the form of document discovery.
NYCLA Opinion 738 found that a lawyer who sends metadata with electronic correspondence is making a disclosure that is presumed to be inadvertent. Metadata means information describing the history, tracking or management of an electronic document, which may include changes that were made to a document and other document properties. As stated in the Opinion, “By actively mining an adversary’s correspondence or documents for metadata under the guise of zealous representation, a lawyer could be searching only for attorney work product or client confidences or secrets that opposing counsel did not intend to be viewed.”
The NYCLA Ethics Opinion helps to guide lawyers in an area in which the American Bar Association and the New York State Bar Association have disagreed. In 2006, ABA Formal Opinion 06 442 permitted review of metadata in documents that opposing counsel sends electronically. An earlier opinion by NYSBA did not permit mining for such metadata.
NYCLA found that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA’s opinion on this issue. The Opinion states: “[W]hen a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.”
To read NYCLA Ethics Opinion 738 and all other NYCLA Ethics Opinions, go to www.nycla.org and click on News & Publications and then on Ethics Opinions. The NYCLA Professional Ethics Committee is the oldest bar association ethics committee in the United States and was the first to issue written ethics opinions.
The New York County Lawyers’ Association (www.nycla.org) was founded in April 1908 as the first major bar association in the country that admitted members without regard to race, ethnicity, religion, gender or sexual identity. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.
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