MINNESOTA LAWYERS PROFESSIONAL RESPONSIBILITY BOARD ADOPTS OPINION ON ETHICAL OBLIGATIONS FOR ATTORNEYS SENDING AND RECEIVING ELECTRONIC DOCUMENTS
The Minnesota Lawyers Professional Responsibility Board recently adopted Opinion No. 22 relating to a lawyer’s ethical obligations regarding metadata. This opinion makes it clear that, based on the Minnesota Rules of Professional Conduct (MRPC), (1) attorneys who send electronic documents have a professional duty to avoid revealing client secrets in metadata, and (2) receiving attorneys who discover confidential metadata inadvertently included in a document must promptly notify the sender.
What is metadata?
Metadata is literally "data about data" and is automatically inserted into documents to describe aspects about the document. Metadata may include innocuous information like creation date, edit time, author name, etc.; however, more advanced features like "track changes" or "insert comments" may insert confidential information directly into a document’s metadata. This metadata may be hidden under normal circumstances, but people with the right tools—or who know where to look—can easily find and use that metadata to their own advantage. For example, while drafting a contract a buyer may insert a "hidden" comment indicating the buyer’s top purchase price. If the buyer is not careful when sharing the document with the seller, the seller can locate that comment in the metadata and gain the upper hand in negotiations.
What does Opinion No. 22 mean for attorneys sending electronic documents?
Attorneys preparing to send electronic documents must take precautions to prevent inclusion of metadata. This may be accomplished in at least two main ways. First, attorneys can print a copy of the document then scan the printed document into an image-based format, like PDF. The other alternative is to use a tool that "scrubs" metadata out of the document before sending it electronically. Those who fail to take these or similar precautions risk violating Rule 1.6 of the MRPC.
What does Opinion No. 22 mean for attorneys receiving electronic documents?
Receiving attorneys must notify senders about metadata that was inadvertently sent. There are situations when both parties knowingly send and receive metadata, for example the buyer and seller may be intentionally exchanging the document with track changes enabled. But if a receiving attorney has reason to know that the sender did not intend to send the metadata, then he or she is obligated, under Rule 4.4(b) of the MRPC, to notify the sender.
If you have questions about the content of this alert please contact Erika Koster at 612.607.7419; Patrick Midden at 612.607.7554 or any member of Oppenheimer's Privacy & Data Protection Team.
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