Ezel / Ethics Opinions / ABA
ABA 2006-08-05

Can a lawyer ethically search for and use the metadata hidden in electronic documents sent by opposing counsel?

Short answer: Yes. The opinion concludes the Model Rules contain no specific prohibition against reviewing and using metadata embedded in documents received from an opposing party or counsel, and that a sending lawyer worried about disclosure should scrub the metadata or send a different version of the document.
Currency note: this opinion is from 2006
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 06-442: Review and Use of Metadata

Short answer: The opinion concludes that the Model Rules contain no specific prohibition against a lawyer reviewing and using metadata embedded in an electronic document received from opposing counsel or an adverse party, and that a lawyer concerned about sending harmful metadata can limit the risk by scrubbing the document or sending a different version.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses metadata, the information embedded in electronic documents such as save dates, the names of authors or owners, redlined edits, and embedded comments. The committee notes that metadata is ubiquitous in electronic documents and that most of it is inconsequential, but that some of it can be highly material, for example when it establishes who knew what and when, or reveals a negotiating party's settlement position.

On the receiving side, the committee finds that the Model Rules contain no specific prohibition against reviewing and using such embedded information. The rule most closely on point, Rule 4.4(b), addresses documents that were inadvertently sent and requires only that the receiving lawyer notify the sender; it is silent on whether the lawyer may review or use the information, and Comment [3] says a lawyer ordinarily may, but need not, return an inadvertently sent document unread. The committee acknowledges that some authorities, notably New York, treat searching for or using metadata as dishonest conduct under rules like 8.4(c) and (d), but it declines to adopt that view, reading Rule 4.4(b)'s addition of a sole notice requirement as a signal that no other restriction was intended on the receiving lawyer. The opinion expressly leaves open whether a particular transmission is "inadvertent" under Rule 4.4(b), and whether the producing lawyer acted competently.

On the sending side, the committee explains that a lawyer can reduce the risk of transmitting harmful metadata by avoiding its creation (for example, not embedding comments or redlined edits), by scrubbing the embedded information before sending, or by sending a different version of the document such as a hard copy, a scanned image, or a fax. A concerned lawyer may also negotiate a confidentiality agreement or, in litigation, a protective order permitting a "pull back," though the opinion observes that some information, such as a client's willingness to settle at a particular price, may be impossible to retrieve once disclosed.

In practice

Under this opinion, and under the Model Rules as they stood at the time, a lawyer who receives an electronic document from opposing counsel does not violate the Rules by reviewing and using the metadata embedded in it, assuming the document was obtained lawfully. The opinion places the burden of protection on the sending lawyer, who can scrub the metadata or send an alternate version. Because some jurisdictions have adopted a contrary rule and some have amended their rules on inadvertent disclosure since 2006, the page reflects the committee's 2006 analysis rather than the current rule in any specific state.

Common questions

Q: Can I look at the metadata in a Word document opposing counsel emailed me?

A: Under this opinion, yes. The committee found no specific Model Rule prohibition against reviewing and using metadata in documents received from an opposing party or counsel. The opinion states that "the Rules do not contain any specific prohibition against a lawyer's reviewing and using embedded information in electronic documents."

Q: Does Rule 4.4(b) stop me from using metadata?

A: No. The committee concluded that Rule 4.4(b) only requires the receiving lawyer to notify the sender of an inadvertently sent document and is "silent as to the ethical propriety of a lawyer's review or use of such information."

Q: How do I keep my own metadata from reaching the other side?

A: The opinion describes scrubbing the document or sending a different version. It notes that computer users "can eliminate or 'scrub' some kinds of embedded information in an electronic document before sending, producing, or providing it to others," and suggests sending a hard copy, scanned image, or fax instead.

Background and rules framework

The opinion interprets Model Rule 4.4(b) (receipt of inadvertently sent documents and the duty to notify the sender) and considers Rule 8.4(c) and (d) (dishonesty and conduct prejudicial to the administration of justice). It cross-references Rule 1.6 and its Comment [16] on safeguarding information relating to the representation, along with Rules 1.1, 5.1, and 5.3 on competence and supervision, and notes Rules 4.1(a) and 3.4(a) in footnotes. The committee situates the question alongside its companion opinions on inadvertent and unsolicited receipt of confidential materials.

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 4.4(b) (inadvertently sent documents; duty to notify)
  • ABA Model Rule 8.4(c) and (d) (dishonesty; conduct prejudicial to the administration of justice)
  • ABA Model Rule 1.6, Comment [16] (safeguarding information relating to the representation)
  • ABA Model Rules 1.1, 5.1, 5.3 (competence and supervision)

Other opinions cited:

  • ABA Formal Op. 06-440 (2006): unsolicited receipt of privileged or confidential materials
  • ABA Formal Op. 05-437 (2005): inadvertent disclosure of confidential materials
  • NY State Bar Ops. 749 (2001) and 782 (2004): the contrary view treating metadata mining as improper

See also

Source