Immigration Practice News

June 2014 (Vol. 5, No. 4)

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www.aila.org 4 by Sherry Cohen W hat are a lawyer's obligations to prevent disclosure of confidential information in metadata? Better yet…what is metadata anyway? How and why does it affect me and my practice? Many lawyers who use computer soware to create, transmit or store documents may be unaware that there is information contained in the document that is not be visible on the screen or in the printed document. Such hidden information is called "metadata." Some hidden information, such as the date an electronic file was created or later edited may not seem important initially but can become so at a later time. Other information, such as the document's authorship, edits reflected in prior dras, commentary or revisions, may reveal work- product, strategy or other confidential information potentially harmful to the client or the matter, which are otherwise protected under Rule 1.6. e duty to employ reasonable efforts to prevent inadvertent disclosure of metadata arises from the fact that there are technological tools specifically designed to search for and reveal metadata. Based on an assumption that such tools may be used by the recipient, lawyers who transmit electronic documents to third parties have a duty to ensure that no confidential information is revealed in embedded metadata. 1 is duty arises not only from the "reasonable efforts" component in Rule 1.6(c), but also the general duty of competent representation under Rule 1.1. Since most lawyers today rely on electronic communications—albeit in varying degrees – in their day to day practice, competency with respect to metadata requires that a lawyer obtain a basic understanding of the risks of revealing metadata and the technology available to prevent it or enlist competent technical support personnel to accomplish the task of removing or blocking access to metadata. 2 Unless there has been agreement otherwise, lawyers should assume that a recipient will search for metadata. 3 To avoid this problem, convert a Word document or file to PDF format to eliminate much of the metadata, or try a metadata stripper, such as the Metadata Assistant. Newer Windows operating systems (Windows 7 and 8) do a better job of managing metadata than prior versions, but it is still best to convert to PDF format. Sherry Cohen is an AILA member serving as the Reporter for the AILA Ethics Compendium, a free AILA member resource where this article excerpt first appeared. 1 See e.g., Amersham Biosciences Corp. v. PerkinElmer Inc., No. 03-4901 (JLL) 2007 WL 329290 (D.N.J. Jan. 31, 2007)(law firm waived lawyer- client privilege and work-product protection concerning client e-mails by producing compact disk containing information in hidden metadata files); Arizona Ethics Op. 07-03 (2007)(lawyer must take reasonable precau- tions to prevent communication of metadata containing client informa- tion); Colorado Ethics Op. 119 (2008)(lawyer must take reasonable care to avoid disclosing metadata with confidential information to a third party); Minnesota Ethics Op. 22 (2010)(lawyer must act competently to prevent unauthorized disclosure of confidential information contained in metadata of electronic documents); Penn. Bar Ass'n Formal Op. 2009-100(transmit- ting lawyer has duty of reasonable care to remove unwanted metadata from electronic documents before sending them to an adverse or third party), See ABA Map and Chart of Metadata Ethics Opinions Around the U.S. http://www.americanbar.org/groups/departments_offices/legal_technol- ogy_resources/resources/charts_fyis/metadatachart.html 2 See Oregon Ethics Op. 2011-187 (in addition to citing duty, suggests spe- cific methods to safeguard against access to metadata including 'utilizing available methods of transforming the document into a non-mailable form, such as converting it to a PDF or "scrubbing" the metadata from the docu- ment prior to transmittal'); ABA Formal Op. 06-552 (lawyer may be able to limit transmission of metadata by "scrubbing" or sending document in a paper, facsimile or scanned format that does not contain metadata, noting that all states that have considered the issue have concluded that a lawyer has a duty to exercise reasonable care to prevent inadvertent disclosure of metadata ). 3 Jurisdictions differ as to whether a receiving lawyer may ethically search for data in electronic documents or whether he is required under the rules to notify the sender that he has received a document which inadvertently included metadata. e justification for the latter is based on MR 4.4(b) which provides: (b) A lawyer who receives a document or electronically stored infor- mation relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. Compare ABA Formal Ethics Op. 06-442(2006) (receiving lawyer may ethi- cally look for and use metadata received from an opposing party); Florida Ethics Op. 06-02(2006)[Rule 4.4(b) prohibits lawyers from trying to obtain any information from metadata unless it was purposely and knowingly supplied]; Penn. Bar Ass'n Formal Ethics Op. 2009-100 (receiving lawyer has duty under Rule 4.4(b) to notify transmitting lawyer if an inadvertent metadata disclosure occurs). The Ethics of Metadata in Immigration Practice AMERICAN IMMIGRATION LAWYERS ASSOCIATION Modern Legal Ethics for Immigration Lawyers AILA Compendium ETHICS + LIBRARY FREE! AILA's Ethics Compendium

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