D.C. Bar Ethics Opinion re: metadata and privilege issues
The District of Columbia Bar Legal Ethics Committee just issued a useful ethics opinion (No. 341) (Sept. 2007) re: metadata in email attachments and in electronic production in discovery. The Ethics Committee, while recognizing that the ABA and several state ethics commissions have taken a more lenient approach, notes that the recent revisions to D.C. Rule 4.4 mean that it is more broadly written than ABA Model Rule 4.4. Hence, when the receiving attorney has prior knowledge or it is otherwise obvious that privileged material was inadvertently produced through metadata, the receiving attorney must stop and not review the metadata any further. In Maryland, of course, the result would be the opposite. This is the key excerpt re: knowledge of inadvertent disclosure: "A receiving lawyer may have such actual prior knowledge if he is told by the sending lawyer of the inadvertence before the receiving lawyer reviews the document. Such actual knowledge may also exist where a receiving lawyer immediately notices upon review of the metadata that it is clear that protected information was unintentionally included. These situations will be fact-dependent, but can arise, for example, where the metadata includes a candid exchange between an adverse party and his lawyer such that it is "readily apparent on its face," D.C. Ethics Op. 318, that it was not intended to be disclosed. As we stated in Opinions 256 and 318, a prudent receiving lawyer who is uncertain whether the sender intended to include particular information should contact the sending lawyer to inquire." The Maryland ethics opinion is contrasted to the result under DC law: "[Footnote 5] In its Opinion No. 2007-09, the Maryland Bar also concluded [as did the ABA] that Rule 8.4(c) is not implicated by a receiving lawyer's accessing metadata. But the Maryland Bar relied on its version of Rule 4.4. which has not been amended to impose any obligation on the lawyer who receives an inadvertently produced document. The Maryland Bar stated that its opinion was "heavily influenced by the difference between the Maryland Rules of Professional Conduct and [ABA Model Rule 4.4]." D.C. Rule 4.4(b), by contrast, imposes upon the receiving lawyer an obligation not only to contact the sending lawyer (as the Model Rule requires), but also to abide by the sending lawyer's instructions regarding the return or destruction of the document." The DC opinion's conclusion is: "We conclude that when a receiving lawyer has actual knowledge that an adversary has inadvertently provided metadata in an electronic document, the lawyer should not review the metadata without first consulting with the sender and abiding by the sender's instructions. In all other circumstances, a receiving lawyer is free to review the metadata contained within the electronic files provided by an adversary." Alan R. Kabat, Bernabei & Wachtel, PLLC
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