ALI-ABA Live Telephone and Audio Webcast Seminar

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ALI-ABA Live Telephone and Audio Webcast Seminar
Ethics and Professionalism Series
Confidentiality and Ethics in a Wired World
Tuesday, December 11, 2007
Confidentiality and Ethics in a Wired World
By
Carolyn B. Witherspoon, Esquire
Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, Arkansas
© American Law Institute 2007.
All rights reserved. Reprinted with permission.
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Confidentiality And Ethics In A Wired World
Carolyn Witherspoon
Communication may be getting easier, but
secrets are getting harder to keep.
Carolyn Witherspoon
is a partner with Cross, Gunter, Witherspoon
& Galchus, P.C. in Arkansas. She is a member
of the Pulaski County (President, 1989-1990),
Arkansas (President, 1995-1996; Labor Law
Section, Chair, 1991-1992) and American
(Member; House of Delegates, 1997-; Labor
Law Section and EEO Committee; TIPS) Bar
Associations, Arkansas Association of Women
Lawyers (President, 1982-1983); William R.
Overton Inn of Court (President, 1992-1993);
Member, Members Consultative Group
for Restatement Third, Employment Law,
American Law Institute; Fellow, American
College of Labor and Employment Lawyers;
Member, American Employment Law Council;
Member, American Judicature Society.
This article is based on a paper the author
prepared for a seminar sponsored by the ABA’s
Section of Labor and Employment Law. The
author would like to thank Travis Bo Loftis, a
student at the University of Arkansas at Little
Rock, William H. Bowen School of Law, for his
assistance with this article.
The legal profession is no stranger to adaptation. Indeed, the doctrine of stare decisis and the fundamental principles of the common law are evolutionary by
their very nature, and so is human technology. In the past
decade or two, the attorney’s ethical duty of confidentiality, the attorney-client privilege, and the work-product
doctrine, have all been affected by innovations in efficiency of communication like the fax machine, computer,
cellular phone, and email. The legal profession’s various
procedural and ethical rules invariably lag behind the latest invention, and new ethical issues arising from technology disputes are common, making reluctant technophiles
out of many practitioners.
The latest legal gremlin to cause mischief in litigation
pertains to the inadvertent disclosure of metadata, and,
to a lesser extent, pre-production deletion of metadata.
The latter practice is becoming more and more common
and is normally not an issue. When the metadata is under
evidentiary dispute, however, deletion or “scrubbing” of
this metadata may have consequences for obvious reasons.
Problems also arise when a document and accompanying metadata are disclosed with confidential information
contained therein. Because of the scarcity of the law in
this area, inadvertent disclosures of metadata are creating ethical questions affecting the disclosing attorney’s
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duty of zealous representation. Although this is a
broad topic raising many issues, the focus of this
article is directed to ethical implications generally.
Confidentiality disclaimers in email communications are used every day by virtually all participants in the online commercial marketplace
and throughout the legal profession. Although no
attempt to enforce this boilerplate language is currently reported, they seem to be here to stay, like
the disclaimers commonly displayed on fax coversheets. This article also focuses on the efficacy of
the disclaimer and ethical issues arising from the
use and non-use of them.
HI-TECH REALITY AND ETHICAL OBLIGATIONS: METADATA • Many lawyers know
that electronic documents contain metadata. For
the less technologically savvy attorney, metadata—also known as “data about data”—is embedded information in an electronic document. From
a more technical perspective, metadata is used by
the system administration to manage the document’s storage, transfer, and general handling. As
for spreadsheets (e.g., Microsoft Excel), these files
contain cells that may contain mathematical formulas or calculations in metadata form that are not
seen in a printed version but may have evidentiary
value. See Williams v. Sprint/United Management Company, 230 F.R.D. 640 (D. Kan. 2005). All of these
files are subject to metadata inspection in an electronic copy.
An analog from the pre-electronic era is a library catalog card. The card typically contains data
about the contents and location of a book in the
library. Additionally, the card contains the name of
the author, the title of the book, the publisher, the
year of publication, the genre, the series it belongs
to, and other identifiers such as ISBN numbers and
Dewey Decimal system call numbers. Using metadata, a Microsoft Word or WordPerfect document
is created, catalogued, and retrievable in a fashion
May 2007
similar to the library catalog card. Metadata is immediately associated with a new document that
designates the type of file, creation and edit dates,
authorship, and edit history.
The Ethical Rules
The issue of metadata is important for attorneys
because the disclosure of this information—either
on purpose or not—implicates several ethical rules,
as well as discovery rules. Obviously, a primary
ethical rule implicated is the disclosing attorney’s
duty of confidentiality under Rule 1.6 of the ABA’s
Model Rules of Professional Conduct. When is
metadata confidential? Metadata may also affect all
attorneys’ duty to provide diligent representation to
their clients under Rule 1.3. Does the interplay of
these rules require the disclosing attorney to delete
metadata before sending? When will deleting metadata be an offense subject to discipline or sanctions? Does Rule 1.3 oblige the receiving attorney
to inspect metadata that is disclosed in discovery in
order to zealously represent the client? Does Rule
4.4(b) require the receiving attorney to notify the
disclosing attorney when confidential information
contained in metadata is inadvertently disclosed?
The hi-tech landscape and the presence of
metadata information may affect the attorney-client relationship, the work-product doctrine, and
the attorney’s general duty of confidentiality. The
imprudent attorney is in danger of waiving the
first two of these doctrines by inadvertently disclosing metadata and is in danger of violating ethical
rules by breaching confidentiality in the process.
The courts have adopted various approaches to
the waiver of the attorney-client and work-product
privileges. See Douglas R. Richmond, The AttorneyClient Privilege and Associated Confidentiality Concerns in
the Post-Enron Era, 110 Penn. St. L. Rev. 381 (2005).
Most courts take a reasonableness or balancing approach to determine whether a waiver applies to
these privileges. E.g., Maldonado v. New Jersey, 225
F.R.D. 120, 130–31 (D.N.J. 2004).