What are a Minnesota lawyer's ethical duties regarding metadata in electronic documents?

Plain-English summary

The opinion starts from two duties under the Minnesota Rules of Professional Conduct: the duty not to knowingly reveal information relating to the representation of a client (Rule 1.6) and the duty to act competently to safeguard such information against inadvertent or unauthorized disclosure (Rule 1.1). It concludes those duties extend to and include metadata in electronic documents, so a lawyer is ethically required to act competently to avoid improper disclosure of confidential and privileged information in metadata.

The opinion then addresses the receiving lawyer. If a lawyer receives a document that the lawyer knows or reasonably should know inadvertently contains confidential or privileged metadata, the lawyer must promptly notify the document's sender, as required by Rule 4.4(b).

The opinion's comment explains what metadata is (information generated and embedded in electronic documents, such as authorship, creation and modification dates, and embedded comments), how it can be transmitted, scrubbed, or mined, and why hidden metadata creates a risk of inadvertent disclosure of confidential information in both litigation and non-litigation settings. It notes that the generation, transmittal, and receipt of documents containing metadata also implicates Rules 5.1 and 5.3 (supervisory duties), and that the opinion does not suggest any ethical obligation either to look or not to look for metadata, which it calls a fact-specific question beyond the opinion's scope. The opinion limits itself to ethical obligations under the Minnesota Rules, not other obligations such as those under the rules of civil procedure.

In practice

Under this opinion, a Minnesota lawyer must take reasonable, competent steps to prevent disclosing confidential or privileged information embedded as metadata in electronic documents, under Rules 1.1 and 1.6. The opinion states that a lawyer who receives a document the lawyer knows or reasonably should know inadvertently contains confidential or privileged metadata must promptly notify the sender, per Rule 4.4(b). The opinion does not impose any duty either to look for, or to refrain from looking for, metadata in a received document.

Common questions

Q: Do a lawyer's confidentiality duties cover metadata?

A: Yes. The opinion holds that the duties under Rules 1.1 and 1.6 extend to and include metadata in electronic documents, so a lawyer must act competently to avoid improperly disclosing confidential or privileged metadata.

Q: What must a lawyer do after receiving privileged metadata by mistake?

A: The opinion requires a lawyer who knows or reasonably should know that a received document inadvertently contains confidential or privileged metadata to promptly notify the sender under Rule 4.4(b).

Q: Does the opinion require a lawyer to search received documents for metadata?

A: No. The opinion states it does not suggest an ethical obligation either to look or not to look for metadata, calling that a fact-specific question beyond its scope.

Q: How can metadata be removed before sending a document?

A: The opinion's comment notes metadata can be scrubbed using software or by scanning a printed copy to PDF, and that transmitting hard copies or faxing avoids sending metadata.

Background and rules framework

The opinion applies Rule 1.1 of the Minnesota Rules of Professional Conduct (the analog of Model Rule 1.1 on competence) and Rule 1.6 (the analog of Model Rule 1.6 on confidentiality), and applies Rule 4.4(b) (the analog of Model Rule 4.4(b) on inadvertently sent documents) to metadata. It also references Rules 5.1 and 5.3 on supervisory responsibilities, and it relies on ABA Formal Opinion 06-442 (2006). It was adopted in 2010.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence); MR 1.6 (confidentiality); MR 4.4 (respect for rights of third persons)
• MR 5.1 and MR 5.3 (supervisory responsibilities)
• Minnesota RPC 1.1, 1.6(a), 4.4(b), 5.1, and 5.3

Other opinions cited:

• ABA Formal Opinion 06-442 (2006): review and use of metadata in electronic documents

See also

• ABA Ethics Op. 06-442: Review and Use of Metadata
• Alabama Ethics Op. 2007-02: Ethical Propriety of Mining Metadata
• Colorado Ethics Op. 119: Metadata

Source

• Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
• Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-22_compressed.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION NO. 22
A Lawyer’s Ethical Obligations Regarding Metadata
A lawyer has a duty under the Minnesota Rules of Professional Conduct
(MRPC), not to knowingly reveal information relating to the representation of a client,
except as otherwise provided by the Rules, and a duty to act competently to safeguard
information relating to the representation of a client against inadvertent or
unauthorized disclosure. See Rules 1.1, 1.6, MRPC. The lawyer’s duties with respect to
such information extends to and includes metadata in electronic documents.
Accordingly, a lawyer is ethically required to act competently to avoid improper
disclosure of confidential and privileged information in metadata in electronic
documents.
If a lawyer receives a document which the lawyer knows or reasonably should
know inadvertently contains confidential or privileged metadata, the lawyer shall
promptly notify the document’s sender as required by Rule 4.4(b), MRPC.
Comment
Metadata Generally
Metadata, sometimes defined as data within data, is used in this Opinion to refer
to information generated and embedded in electronically created documents. Metadata
is generated automatically by software when an electronic document is created,
accessed and modified and typically may include such information as the date the
document was created, the author, and the date changes were made to the document.
Other times metadata may be purposely created, such as when the author adds
comments or other information visible in the document’s electronic format but which
may not be visible in its printed version. When electronic documents are transmitted
electronically—for example, as a Word document attached to an e-mail—the metadata
is transmitted with the document.
Metadata can be “scrubbed” or removed from an electronic document by various
means, including the use of special software programs or by scanning a printed copy of
the document and sending it in a PDF format. Transmission of metadata can also be
avoided by transmitting hard copies of the document rather than electronic copies or by
faxing the document.

Metadata embedded in an electronic document can be “mined” or viewed by a
recipient of the document. Some metadata can be accessed simply by right-clicking a
mouse or selecting “properties” or “show markup” on a Word document. Other
metadata can be accessed by the use of special software programs.
There are many types of metadata, many ways of creating metadata, and many
means for removing and accessing metadata, all of which will undoubtedly continue to
expand and evolve with technological innovation.
Most metadata is not confidential, and the disclosure of metadata may often be
intentional and for the mutual benefit of clients with adverse interests. Other metadata
may contain confidential information the disclosure of which can have serious adverse
consequences to a client. For example, a lawyer may use a template for pleadings,
discovery and affidavits which contain metadata within the document with names and
other important information about a particular matter which should not be disclosed to
another party in another action. Also as an example, a lawyer may circulate within the
lawyer’s firm a draft pleading or legal memorandum on which other lawyers may add
comments about the strengths and weaknesses of a client’s position which are
embedded in the document but not apparent in the document’s printed form.
Similarly, documents used in negotiating a price to pay in a transaction or in the
settlement of a lawsuit may contain metadata about how much or how little one side or
the other may be willing to pay or to accept.
Due to the hidden, or not readily visible, nature of metadata and the ease with
which electronic documents can be transmitted, a potential exists for the inadvertent
disclosure of confidential or privileged information in the form of metadata in both a
litigation and non-litigation setting, which in turn could give rise to violations of a
lawyer’s ethical duties.
Applicable Rules
Rule 1.1, Minnesota Rules of Professional Conduct (MRPC), states that “[a]
lawyer shall provide competent representation to a client.” Comment 5 to Rule 1.1
provides that “[c]ompetent handling of a particular matter includes . . . use of methods
and procedures meeting the standards of competent practitioners.”
As noted in American Bar Association Formal Opinion 06-442 (2006) at 1:
In modern legal practice, lawyers regularly receive email, sometimes with
attachments such as proposed contracts, from opposing counsel and other
parties. Lawyers also routinely receive electronic documents that have
been made available by opponents, such as archived e-mail and other
documents relevant to potential transactions or to past events. Receipt
may occur in the course of negotiations, due diligence review, litigation,
investigation, and other circumstances.
Competence requires that lawyers who use electronic documents understand that
metadata is created in the generation of electronic documents, that transmission of
electronic documents will include transmission of metadata, that recipients of the
documents can access metadata, and that actions can be taken to prevent or minimize
the transmission of metadata.
Rule 1.6(a), MRPC, states that, “[e]xcept when permitted under paragraph (b), a
lawyer shall not knowingly reveal information relating to the representation of a
client.” Comment 2 to the rule explains that “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer
must not reveal information relating to the representation.” Comment 15 provides that
“[a] lawyer must act competently to safeguard information relating to the
representation of a client against inadvertent or unauthorized disclosure by the lawyer
or other persons who are participating in the representation of the client or who are
subject to the lawyer’s supervision”; and Comment 16 further provides that “when
transmitting a communication that includes information relating to the representation
of a client, the lawyer must take reasonable precautions to prevent the information from
coming into the hands of unintended recipients.”
Opinion No. 22 makes clear that the duty imposed by Rule 1.6(a), MRPC,
regarding client information extends to and includes metadata in electronic documents.
Thus, a lawyer must take reasonable steps to prevent the disclosure of confidential
metadata. See ABA/BNA Lawyers’ Manual on Professional Conduct 55:401 (2008)
(“When a lawyer sends, receives, or stores client information in electronic form, the
lawyer’s duty to protect that information from disclosure to unauthorized individuals is
the same as it is for information communicated or kept in any other form.”).
Rule 4.4(b), MRPC, states that “[a] lawyer who receives a document relating to
the representation of the lawyer’s client and knows or reasonably should know that the
document was inadvertently sent shall promptly notify the sender.” Comment 2 to the
Rule explains that lawyers sometimes receive documents that were mistakenly sent and
that “[i]f a lawyer knows or reasonably should know that such a document was sent
inadvertently, then this rule requires the lawyer to promptly notify the sender in order
to permit that person to take protective measures.” Comment 2 states that “[f]or
purposes of this rule, ‘document’ includes email or other electronic modes of
transmission subject to being read or put into readable form. Opinion No. 22 makes
clear that the duty imposed by Rule 4.4(b) regarding documents extends to metadata in
electronic documents.
“Whether the lawyer is required to take additional steps, such as returning the
original document, is a matter of law beyond the scope of these Rules, as is the question
of whether the privileged status of a document has been waived.” Comment 2 to
Rule 4.4, MRPC.
The generation, transmittal and receipt of documents containing metadata also
implicates ethical obligations under Rules 5.1 and 5.3, MRPC.
Opinion 22 is not meant to suggest there is an ethical obligation on a receiving
lawyer to look or not to look for metadata in an electronic document. Whether and
when a lawyer may be advised to look or not to look for such metadata is a fact specific
question beyond the scope of this Opinion.
A lawyer may be subject to a number of obligations other than those provided by
the MRPC in connection with the transmission and receipt of metadata, including
obligations under the Federal Rules of Civil Procedure and the Minnesota Rules of Civil
Procedure. Removing metadata from evidentiary documents in the context of litigation
or in certain other circumstances may be impermissible or illegal. Opinion No. 22
addresses only a lawyer’s ethical obligations regarding metadata under the Minnesota
Rules of Professional Conduct.
Adopted: March 26, 2010.