PLI: Given the ease and speed with which the transmission of
information and documents can occur in today's technological world,
isn't it fairly easy for lawyers to inadvertently disclose confidential
or sensitive information?
DAVID A. LEWIS: It can be. New and convenient technological methods of communication absolutely bring with them the risk of professional conduct problems if users are not extremely careful.
Today, all it takes to inadvertently disclose confidential or sensitive information is a single click of a button. This type of mistake can occur in a fraction of a second, but the potential consequences can last a lifetime.
PLI: What are the most common ways that these disclosures happen?
DAVID A. LEWIS: There are a number of ways that information can be inadvertently disclosed, but most often, inadvertent disclosure occurs when an electronic communication is misdirected or information is revealed as a result of a "proactive" search for data.
In the first instance, who among us has not heard of some poor soul who hit "reply to all," in an email — either on a computer or through a handheld device — when a simple "reply" was all that was intended?
As for the second instance, metadata is now one of the most common ways in which a lawyer can inadvertently disclose confidential information. Although many lawyers have become familiar with metadata, the recognition of the potential dangers of it are still far from universal. Generally speaking, metadata can best be described as "data about data." While many times this data will consist of information that is seemingly of little consequence, in some circumstances, the disclosure of metadata can be disastrous. For example, metadata can include information about a file's name, original author, as well as the date a file was created, modified, revised, or printed, among other things.
Reading the "metadata" sometimes requires that a lawyer be particularly computer savvy so he or she can "get behind" the document and search for the metadata. However, in other cases, looking for metadata in a Word document can be as simple as clicking "File" and selecting view "Properties."
When it comes to metadata, the age old saying, "an ounce of prevention is worth a pound of cure" really rings true. To significantly help avoid problems with inadvertent disclosure through metadata, lawyers should use a reliable "wipe" program. "Wipe" programs are extremely user friendly. Essentially, before sending a document electronically, a wipe program will remove metadata with the stroke of a single key by asking the sender if he or she wishes to "clean" the attachment.
PLI: So what guideposts are there for a lawyer who receives an inadvertent disclosure?
DAVID A. LEWIS: The Rules of Professional Conduct are the first place to look. Generally, these Rules are the same in both a low tech world where one might be dealing with a misdirected fax and in a high tech world where one has disclosed information with an accidental mouse click. There are also many ethics opinions that specifically address these issues; however, not all jurisdictions always provide clear guidance.
The American Bar Association's Model Rule of Professional Conduct 4.4(b) provides a reasonable solution with direct guidance. The rule provides that a receiving lawyer cannot take advantage of an adversary's mistake by keeping an inadvertent disclosure a secret and remaining silent. An obligation is placed on the receiving lawyer to "notify" the sender. However, there is no corresponding duty to abide by the sender's instructions as to how to resolve the situation. The burden of taking any remedial measures now falls squarely on the shoulders of the sender. New York and many other jurisdictions follow this approach. However, not all jurisdictions agree.
In trying to address the consequences of inadvertent disclosures, some jurisdictions, including Oregon, Pennsylvania, Utah, North Dakota and Massachusetts, have found that a lawyer's duty to the client permits the receiving lawyer to use the adversary's inadvertently disclosed confidential information freely in order to benefit the receiving lawyer's client.
Other jurisdictions, including Tennessee, Virginia and Colorado, come out on the opposite end of the spectrum and find that a lawyer must notify his or her adversary immediately when in receipt of an inadvertent disclosure of confidential information and then abide by the adversary's reasonable instructions, such as destruction or "return to sender."
PLI: Do any states have specific opinions dealing with inadvertent disclosure via electronic metadata or a lawyer's ability to affirmatively search for metadata?
DAVID A. LEWIS: With respect to the inadvertent disclosure of metadata, there is currently a disparity among different jurisdictions as to what a lawyer's professional conduct obligations are. For example, in New York, Florida, Arizona and Alabama, ethics committees have held that a lawyer may not be proactive and search for metadata in the documents that he or she receives. However, ethics committees in Maryland, the District of Columbia and Colorado have opined that it is ethically permissible to search for metadata in documents.
PLI: So what is the take away — generally speaking — as far as inadvertent electronic disclosure is concerned?
DAVID A. LEWIS: The reality is that a large number of disciplinary violations come about not because of any intent to flout the rules of professional conduct, but rather from a lack of knowledge about what the rules require. Too many lawyers think that this kind of thing will never happen to them and they don't focus on the details of the rules until it is too late. After all, they surmise, if a lawyer is a fair-minded, moral person, shouldn't that be enough to assure that the actions he or she takes will automatically be "ethical?" That might work for some dilemmas, but for high tech lawyers especially, simply being honest, fair-minded and morally upstanding will not always protect you from the many traps that a lawyer can encounter. What to do in the face of an inadvertent disclosure is just one example of why a thorough understanding of the Rules of Professional Conduct in your jurisdiction is indispensable.
The comments to this entry are closed.