David A. Lewis (Proskauer Rose LLP) discusses the impact mobile technology is having on professional responsibility, specifically on inadvertent disclosures
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.
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