Florida Bar Board of Governers Calls Looking at Metadata an Ethics Violation

The Florida Bar News reports

The Bar Board of Governors is asking whether an ethics opinion or Bar rule is needed to regulate mining of metadata from electronic documents, but in the meantime, governors didn’t want to leave any doubt how they felt about it.

The board, at its December 16 meeting in Amelia Island, voted unanimously for a motion to express its sentiment that metadata mining is something lawyers should not do.

“I have no doubt that anyone who receives a document and mines it . . . is unethical, unprofessional, and un-everything else,” said board member Jake Schickel, who made the motion that the board express its disapproval at the practice.

This report reads like something from The Onion--

“Our state needs to be on the forefront of this,” said board member Scott Hawkins.

This seems absurd to me. If a party produces a document with a routing slip attached to it, is it unethical to examine the routing slip to find out who viewed the document? The article basically says that the president-elect of the Board got burned by Word ("track changes" anyone?) and it sounds like he is freaking out over it.

On what planet is this an ethics problem?

~~ Dave

Comments

[Auggie]

The routing slip analogy is one way to look at it. Here's another: Opposing counsel leaves his or her briefcase at your office after a deposition ends. Does this give you license to rummage through it to see what's interesting or what might help your client? It reduces to the old "reasonable expectation of privacy." Someone who allows metadata into the stream of communication may be foolish and negligent, but still deserves respect -- which I afford to that person for my own benefit, not his or hers.

[Dave]

Both of our comments are examples of how analogies break down. There are at least two different kinds of documents at issue here -- discovery documents and work product. I can't see ethical violations surrounding examination of metadata in discovery documents (and the courts are now regularly dealing with discovery metadata issues).

The "briefcase" analogy more aptly applies to work product documents. However, I don't think that a document filed with a court or specifically sent to opposing counsel for review should be afforded the same kind of protections that his briefcase and private papers get. That is, there is no "reasonable expectation of privacy" in filed or exchanged documents.

The Florida Board, however, makes no distinction between these doc types. The thing that is most disturbing to me is that this seems to be coming from the Board's profound ignorance of technology and lack of thought that went into their edict.

[Ernie]

Apparently, this ethics issues has been considered in Colorado too: http://www.sah.com/documents/attorneys/769_20041004_colorado_lawyer.pdf

[Quint]

The Model Rules of Professional Conduct obligate a lawyer to provide competent and diligent representation to a client. If a lawyer is going to use technology to aid in that representation, he/she should also be reasonably competent (and/or ensure that his/her support staff is reasonably competent) to use that technology. Part of that reasonable competence should be knowledge of the existence of metadata and something of how to scrub documents of same, in order to protect confidential information, etc.

I would analogize this to a lawyer taking on a representation involving child custody and support, when the lawyer does not know the first thing about child custody and support issues but feels competent because he has occasionally baby-sat his neighbor's kids for a couple of hours every now and then. The problem with metadata is that lawyers have embraced the
rapid acquisition and deployment of technological tools without bothering to embrace proper training, education and understanding of that technology. We've bought a new gun and the bullets, figured out how to load and pull the trigger but few of us have taken the time to learn proper safety, maintenance and firing techiniques. Some still don't know better than to look down the barrel while the chamber is loaded.

Perhaps professionalism (rather than ethics) mandates that the "techie lawyers" do not gleefully strive to take unfair advantage of the unsuspecting "dinosaurs" but those "dinosaurs" better use their remaining time wisely and start learning how to protect themselves and their clients better or they will end up falling into the tar pit and sinking to the bottom like their typewriter-toting, e-mail abhorrent, paper-dependent predecessors.

[Jeff Hill]

I have to agree with Dave on this one. When I first read the article in the Florida Bar News, I thought it was absolutely ridiculous for the Bar to even consider disciplining lawyers for 'mining' metadata from docements that are voluntarily and knowingly sent to them electronically. It just doesn't seem to be an ethics issue.

Auggie also makes a good point in the first paragraph of his comments. Attorneys are ultimately responsible for the actions of their support personnel. That's why the lawyers make the big bucks and pay their staff squat.

I have little faith in The Florida Bar's role in regulating lawyer misconduct -- see my blog if you're interested why.

[Jeff Hill]

Oops. I meant to say "Quint also makes a good point in the first paragraph of his comments."

I liked Auggie's briefcase analogy, but I think that's an entirely different situation than what the Florida Bar is considering regulating.