Oklahoma Bar Association

The Duty to Notify: The Ethical Use of Metadata in Oklahoma
By Drew T. Palmer and Cherish K. Ralls

After months of heated negotiations, your client, the buyer in a real estate transaction, finally agreed to give in to the seller’s demands. Last night, the seller’s attorney e-mailed the latest version of the purchase agreement. While reviewing it, you wonder if the seller’s attorney has left “metadata” in this version of the agreement. In your last CLE, you remember the instructor droning on about how a sophisticated attorney can uncover various pieces of information, such as comments, prior versions, dates and other authorship information, by viewing the metadata associated with a particular electronic document.

You consider searching the metadata in the purchase agreement in hopes of retrieving a hidden comment indicating if the seller would accept a lower offer. This is an ethical dilemma. This article discusses the issues surrounding the ethical use of metadata and ultimately concludes that, in Oklahoma, attorneys who receive inadvertently disclosed metadata have a duty to notify the sending party.

Dealing with metadata is a reality of practicing law in today’s legal environment. Attorneys continually create and receive electronic documents. Each of these documents may contain hidden “metadata.” Metadata, when accessed, can reveal information that was never intended to be disclosed by the author of the document. 1 For example, metadata could identify the date an electronic document was created, authored, as well as disclose previous versions and edits to the electronic document. Notably, metadata may be found in virtually any type of electronic file including pictures, video clips, documents or other types of digital files. The effective use of metadata can give one side a distinct advantage.

Much has been written regarding the role of electronically stored information and metadata in the discovery process; but recently there has been less focus on the role of metadata in an attorney’s everyday correspondence and negotiations. 2 The Rules of Professional Conduct likewise place ethical restraints on a lawyer’s use of metadata in the normal course of electronic document exchange, such as contract negotiations, advisory opinions and other electronic communications.

Very few jurisdictions have analyzed the ethical use of metadata outside the discovery process. Specific questions not yet addressed are whether the receipt of metadata outside the course of discovery is considered an inadvertent disclosure of confidential information, and if so, how may the receiving attorney ethically use such disclosed metadata? Oklahoma has not made an authoritative ruling regarding the ethical use of metadata and this article will look to other jurisdictions’ rulings for their analyses.

Several authorities have issued written opinions discussing an attorney’s ethical obligation when receiving metadata in an electronic document. Unfortunately, these opinions have not utilized the same analysis or reached the same conclusion. For example, the ABA’s Standing Committee on Ethics and Professional Responsibility and the Florida Bar Professional Ethics Committee found that an attorney who receives metadata may use that metadata in some instances but likely has an obligation to notify the disclosing attorney. 3 The relevant authorities in New York and Alabama, on the other hand, have discussed metadata in conjunction with the general prohibition on “conduct involving dishonesty, fraud, deceit or misrepresentation.” 4 Ultimately, these authorities found that an attorney who receives metadata may only use such metadata if it does not contain confidential client information. The Maryland State Bar Association’s Committee on Ethics has taken perhaps the most liberal view of the issue, stating that an attorney has no ethical duty or obligation upon receiving inadvertently disclosed metadata. 5 As the Oklahoma authorities have not explicitly addressed this issue, a more in-depth review of the different authorities’ reasoning is helpful.

The New York State Bar Association’s Committee on Professional Ethics delivered the first opinion regarding the ethical duties and obligations when an attorney receives metadata. 6 The analysis underlying the New York opinion relies on the assumption that metadata is disclosed “unknowing[ly] and unwilling[ly].” In 2001, the New York committee believed that attorneys were unlikely to know of the existence of metadata in electronic messages. Thus, the New York opinion treated metadata as “confidential” attorney-client communication and noted that such communications are to be scrupulously protected under the auspices of sound public policy. The New York opinion went on to find that an attorney’s use of metadata ran afoul of the prohibition on conduct “involving dishonesty, fraud, deceit or misrepresentation,” as it necessarily invaded the attorney-client relationship. 7 It concluded that attorneys are prohibited from utilizing metadata without the knowledge of the disclosing party. This is the first indication from any authority that an attorney may have a duty to notify a party of inadvertently disclosed metadata. 8

Under the Model Rules of Professional Conduct, the treatment of inadvertently disclosed information is generally addressed in Rule 4.4, which provides in part: “[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 language of Rule 4.4 does not address the issue of metadata directly. The very nature of metadata, however, makes inadvertent disclosure possible, if not likely. Specifically, metadata is rarely visible when editing a document, and since metadata is often unknowingly incorporated into subsequent copies of the document, it is easy to envision how metadata could be “inadvertently sent.” In fact, the ABA Ethics Committee recently analyzed the issue of metadata under Rule 4.4 in ABA Formal Op. 06-442. In its analysis, the ABA Ethics Committee indicated that an attorney who receives inadvertently disclosed metadata may use such metadata but must notify the sending party of its receipt. 9 The determination of whether metadata is disclosed “advertently” or “inadvertently” depends upon the facts and circumstances of the disclosure. 10 The ABA opinion does not prohibit an attorney’s use of metadata, even if the disclosure is inadvertent, but does impose a duty to notify the sending attorney of such inadvertent disclosures.

The ABA opinion was published in August 2006. Since that time, at least two states, Maryland and Florida, have acknowledged the analysis set forth in the ABA opinion, namely that Model Rule 4.4 requires notification to the disclosing party. The two states, however, have differed in their ultimate conclusions. 11 While imposing a duty of notification, Florida requires that an attorney not attempt “to obtain [] metadata information relating to the representation of [the sending attorney’s] client” where the receiving attorney knows or should know that the metadata was inadvertently disclosed. 12 The Maryland State Bar Association’s Committee on Ethics, while acknowledging Rule 4.4 imposes a duty to notify, observes that Maryland has not adopted sub-part (b) of Model Rule 4.4. 13 As a result, the Maryland committee found that an attorney is not required to “notify the sending attorney that there may have been an inadvertent transmittal of privileged materials,” including metadata. 14 Maryland is the only jurisdiction to explicitly find that attorneys who receive metadata are not required to notify the sending party.

Two authorities, New York and Alabama, have found a duty to notify under their version of Model Rule 8.4, 15 which provides in part:

In finding a duty to notify, the New York and Alabama authorities both treat metadata as “information that may be protected by the attorney-client privilege, the work product doctrine or that may otherwise constitute a ‘secret’ of another lawyer’s client.” 16 Under this analysis, the use of metadata runs afoul of Rule 8.4’s prohibition on conduct “involving dishonesty, fraud, deceit or misrepresentation” as it “constitutes a knowing and deliberate attempt by the [receiving] attorney to acquire confidential and privileged information in order to obtain an unfair advantage against an opposing party.” 17 In contrast to the New York and Alabama authorities, the Maryland committee, in considering Rule 8.4, found that an attorney’s duty to notify only exists in the “arena of federal litigation” as provided for in the Federal Rules of Civil Procedure. 18

In Oklahoma, the ethical treatment of inadvertently disclosed metadata should be analyzed under both Rule 4.4 and Rule 8.4. The current version of the Oklahoma Rules of Professional Conduct can be found at Okla. Stat. tit. 5, Appendix 3-A of the Oklahoma Statutes.

Interestingly, the current version of ORPC 4.4 will be superseded on Jan. 1, 2008 by a newer version. The sole difference between the current version and the new version of ORPC 4.4 is the addition of subpart (b):

As previously discussed, jurisdictions that have adopted subpart (b) to Model Rule 4.4 have universally found a duty to notify. 19 Assuming that Oklahoma follows the prevailing trend, after Jan. 1, 2008, attorneys practicing law in Oklahoma will have a duty to notify those whom they know, or reasonably should know, have inadvertently sent the metadata.

Prior to Jan. 1, 2008, attorneys practicing in Oklahoma may also have a duty to notify pursuant to Rule 8.4. As previously discussed, several authorities have indicated that metadata often takes the form of confidential communications protected from disclosure on the basis of a public policy supporting the sanctity of the attorney-client relationship. 20 Therefore, prior to the effective date of subpart (b) of Rule 4.4, attorneys who receive inadvertently disclosed metadata should be wary of New York and Alabama authorities’ interpretation that Rule 8.4 imposes a duty to notify in such situations. And while Maryland has independently found that Rule 8.4 imposes no such duty, the prudent attorney would air on the side of caution and chose to notify those from whom she receives metadata.

The next time you receive an electronic document be cautious. Your treatment of the metadata contained in that document may result in a violation of the Oklahoma Rules of Professional Conduct. In any event, the majority view suggests that any use of metadata be conditioned on your notification to the sending party.

1. ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. No. 06-422 (2006).
2. For more information on metadata as it relates to the discovery process, the authors recommend starting with Elliott Paul Anderson, What Lies Beneath: Native Format Production and Discovery of Metadata in Federal Court, 78 OKLA. B.J. 999 (2007).
3. ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. No. 06-422 (2006); Prof’l Ethics Comm. of the Fl. B., Op. No. 06-2 (2006).
4. N.Y. State B. Ass’n Comm. on Prof’l Ethics, Formal Op. 749 (2001); Ala. St. B. Disciplinary Commission, Op. RO-2007-02 (2007).
5. Md. St. B. Ass’n Ethics Comm., Op. 2007-09 (2007).
6. N.Y. State B. Ass’n Comm. on Prof’l Ethics, Formal Op. 749 (2001).
7. DR 1-102(A)(4) (analogous to Model Rule 8.4)
8. The New York Opinion relied in part on ABA Formal Op. 92-368, which concluded that a lawyer who receives confidential information and clearly understands that he is not the intended recipient, should notify the disclosing lawyer, stop examining the disclosed information, and abide by the instructions of the disclosing lawyer regarding the disposition of such disclosed information. Notably, the ABA later withdrew this opinion in ABA Formal Op. 05-437. ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. No. 05-437 (2005).
9. ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. No. 06-422 (2006).
10. Id. at n. 12 (noting that “one of the facts that might be relevant is whether the metadata is a privileged communication”).
11. Prof’l Ethics of the Fl. B., Op. 06-02 (2006); Md. St. B. Ass’n Ethics Comm., Op. 2007-09 (2007).
12. Prof’l Ethics of the Fl. B., Op. 06-02 (2006).
13. Md. St. B. Ass’n Ethics Comm., Op. 2007-09 (2007).
14. Id.
15. N.Y. State B. Ass’n Comm. on Prof’l Ethics, Formal Op. 749 (2001); Ala. St. B. Disciplinary Commission, Op.
RO-2007-02 (2007).
16. Ala. St. B. Disciplinary Commission, Op. RO-2007-02 (2007) citing N.Y. State B. Ass’n Comm. on Prof’l Ethics, Formal Op. 749 (2001).
17. Ala. St. B. Disciplinary Commission, Op. RO-2007-02 (2007).
18. Md. St. B. Ass’n Ethics Comm., Op. 2007-09 (2007) (citing Fed. R. Civ. Proc. 16(b), 26(b)).
19. See supra text accompanying notes 8-13.
20. See supre text accompanying notes 14-17.

Drew Palmer serves as an associate in Crowe & Dunlevy’s Oklahoma City office. His practice emphasizes patent, copyright, trademark and software licensing matters. He received his bachelor of arts degree in 1996 from Brown University and graduated from the OU College of Law in 2006. Prior to attending law school, he spent several years in management positions for an enterprise software company and has experience as a programmer and consultant as well.

Cherish K. Ralls is an associate at Crowe & Dunlevy’s Oklahoma City office. Her practice centers on business and commercial litigation. She received her degree from the OU College of Law in 2006 with honors. In 2003, she received a B.S. in political science and a B.A. in economics from OSU, where she graduated magna cum laude and was named the Outstanding Senior in the Arts and Sciences College and a Top Ten Senior Graduate.

The Duty to Notify: The Ethical Use of Metadata in Oklahoma
Published 78 OBJ 3141 (December 08, 2007)

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