What are a New Hampshire lawyer's duties regarding metadata in electronic documents sent to or received from opposing counsel?

Plain-English summary

The opinion addresses metadata, the hidden "information about information" embedded in electronic documents that can reveal drafting history, comments, client confidences, and strategy. It treats the sending lawyer and the receiving lawyer as sharing an obligation to protect confidential information, and it answers two questions: what the sender must do, and what the recipient may do.

For sending lawyers, the opinion concludes there is a duty under Rule 1.6 to use reasonable care to avoid disclosing confidential information through metadata. It declines to set a per se rule, holding that what counts as reasonable care depends on the facts, including the document's subject matter and how many people commented on it. The opinion points to Rules 1.1, 5.1, and 5.3 as requiring lawyers to be reasonably informed about metadata and the steps to remove it, while noting that expensive software is not always necessary; sending a scanned or different version can suffice.

For receiving lawyers, the opinion reaches a stricter conclusion than the ABA. New Hampshire amended Rule 4.4(b) in 2008 to provide that a lawyer who receives materials and knows they were inadvertently sent shall promptly notify the sender and shall not examine the materials. The opinion reasons that, because no lawyer would intentionally send confidential information in violation of Rule 1.6, a recipient necessarily "knows" that confidential metadata was inadvertently sent, so Rule 4.4(b) bars the recipient from searching for, reviewing, or using it, absent express waiver or mutual agreement. The opinion expressly aligns New Hampshire with New York, Florida, Alabama, and Maine, and rejects the contrary ABA, Maryland, Colorado, and District of Columbia approaches. It does not address discovery of electronic materials in litigation, which is governed by court rules.

In practice

Under the New Hampshire Rules as they stood when the opinion issued, the opinion holds that a sending lawyer must take reasonable care, judged on the facts, to avoid transmitting confidential information in metadata, and that a receiving lawyer is prohibited under Rule 4.4(b) from mining metadata received from opposing counsel. The opinion treats receipt of confidential metadata as inadvertent as a matter of course, so the recipient's duty to refrain attaches without case-by-case inquiry into the sender's intent. It carves out express waiver and mutual agreement to review metadata, and it leaves discovery of electronic materials to the applicable rules of court.

Common questions

Q: Can a New Hampshire lawyer review metadata in a document received from opposing counsel?

A: No. The opinion concludes that under Rule 4.4(b) a receiving lawyer may not search for, review, or use confidential metadata from opposing counsel, because the lawyer necessarily knows it was inadvertently sent, unless there is express waiver or mutual agreement.

Q: What must a lawyer do before sending an electronic document?

A: The opinion holds that the sending lawyer must use reasonable care under Rule 1.6 to avoid disclosing confidential information in metadata, with reasonableness depending on the facts; there is no per se rule.

Q: Does a lawyer have to buy special scrubbing software?

A: Not necessarily. The opinion states that lawyers can often limit metadata by avoiding its creation or deleting it, or by sending a scanned, faxed, or different version of a sensitive document.

Q: How does New Hampshire's rule differ from the ABA's view?

A: The opinion explains that New Hampshire's 2008 amendment to Rule 4.4(b) uses "materials" instead of "document," replaces "reasonably should know" with "knows," and adds a duty not to examine inadvertently sent materials, producing a prohibition on mining metadata that the ABA's Formal Op. 06-442 does not impose.

Q: Does this opinion govern metadata in discovery?

A: No. The opinion states it does not address the discovery of electronic materials in adjudicative proceedings, which are handled under applicable rules of court and law.

Background and rules framework

The opinion interprets New Hampshire Rule 1.6(a) (confidentiality) and Rule 4.4(b) (respect for the rights of third persons), as amended in 2008, and reads them with Rule 1.1 (competence) and Rules 5.1 and 5.3 (responsibilities for lawyers and nonlawyers in the firm). New Hampshire's Rule 4.4(b) departs from ABA Model Rule 4.4 by covering "materials" rather than a "document," by using a "knows" standard, and by adding an express duty not to examine inadvertently sent materials. The opinion surveys other jurisdictions' opinions and adopts the stricter line that prohibits mining an opponent's metadata.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NH Rule 1.6(a) (confidentiality of information)
• MR 4.4 / NH Rule 4.4(b) (respect for rights of third persons; inadvertently sent materials)
• MR 1.1 / NH Rule 1.1 (competence)
• MR 5.1 / NH Rule 5.1 (responsibilities of supervisory lawyers)
• MR 5.3 / NH Rule 5.3 (responsibilities regarding nonlawyer assistance)

Other opinions cited:

• ABA Formal Op. 06-442 (2006): review and use of metadata
• N.Y. State Bar Op. 749 (2001) and Op. 782 (2004): mining and protecting metadata
• Fla. Bar Op. 06-2 (2006); Ala. Bar Op. 2007-02 (2007); Me. Bar Op. 196 (2008): prohibition on mining metadata
• Md. Bar Op. 2007-09 (2007); Colo. Bar Op. 119 (2008); D.C. Bar Op. 341 (2007); Pa. Bar Op. 2007-500 (2007): contrary or qualified approaches

See also

• ABA Formal Op. 06-442: Review and Use of Metadata
• DC Bar Op. 341: Review and Use of Metadata in Electronic Documents
• Colorado Bar Op. 119: Disclosure, Review, and Use of Metadata
• Alabama Bar Op. 2007-02: Disclosure and Mining of Metadata

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2008-09-04
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2020/01/14111505/2008-09-04-REFORMATTED-Disclosure-Review-and-Use-of-Metadata-in-Electronic-Materials.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSCIATION
Disclosure, Review and Use of Metadata in Electronic Materials
Ethics Committee Advisory Opinion #2008-09/04

ABSTRACT:
New Hampshire lawyers who either send or receive electronic materials share an ethical
obligation to preserve confidential information relating to the representation of clients. It is
impermissible for New Hampshire lawyers to seek to review or use metadata received from
opposing counsel.
ANNOTATIONS:
Electronic materials sent and received by lawyers in modern law practices contain hidden
information called “metadata,” which may contain confidential information relating to
representation of a client. Both sending and receiving lawyers share ethical obligations to prevent
disclosure of such confidential information.
Lawyers sending electronic materials to opposing counsel are ethically required to take
reasonable care to avoid improper disclosure of confidential information contained in metadata,
which might include appropriate training and education on reasonable measures that can be taken
to reduce the likelihood of improper disclosure of confidential information through transmission
of metadata. There can be no per se rule on what constitutes reasonable care in transmission of
metadata, as the facts and circumstances of each case will dictate the reasonableness of
protective measures taken by sending lawyers.
Receiving lawyers have an ethical obligation not to search for, review or use metadata containing
confidential information that is associated with transmission of electronic materials from
opposing counsel. Receiving lawyers necessarily know that any confidential information
contained in the electronic material is inadvertently sent, triggering the obligation under Rule
4.4(b) not to examine the material. To the extent that metadata is mistakenly reviewed, receiving
lawyers should abide by the directives in Rule 4.4(b).
This opinion does not address issues relating to the discovery of electronic materials in
adjudicative proceedings, which are handled under applicable rules of court and law.

OPINION:
INTRODUCTION:
In modern legal practice, lawyers routinely send and receive e-mails and other materials in
electronic form from opposing counsel and other parties. Electronic documents are sent and
received during the course of negotiations, due diligence reviews, litigation, investigations and
other dealings. E-mails and other electronic documents inevitably contain “embedded”
information commonly referred to as “metadata.” Metadata is “information about information”
not ordinarily visible on the computer screen that describes the history, tracking or management
of an electronic document.
Some metadata is automatically lodged within the document by software, such as the date and
time the document was produced, and can be accessed simply by right-clicking on it with a
computer mouse. Other types of metadata are produced by word processing programs that allow
users to “redline” changes to a document or to embed comments, which may or may not pop up
as the cursor is moved over them. If metadata is “mined” by use of readily available computer
programs, it can show, among other things, the changes made to a document during its drafting,
as well as comments made by various reviewers of the document. Metadata may, therefore,
reveal client confidences, litigation and negotiation strategy, legal theories, attorney work
product and other legally privileged and confidential information that was never intended to be
communicated by the sender. This raises ethical issues for both the sending and receiving
lawyers.
The Ethics Committee believes it appropriate to provide guidance to New Hampshire lawyers on
ethical obligations regarding transmission, receipt and use of metadata under the New
Hampshire’s Rules of Professional Conduct. This opinion addresses both the ethical obligations
of the sending lawyer to prevent the disclosure of metadata containing confidential information
when transmitting electronic materials and the ethical obligations of the recipient lawyer with
respect to searching for, reviewing and using metadata found in electronic materials. The
Committee’s view is that both sending and receiving lawyers share ethical obligations to
preserve confidential information relating to representation of clients and that it is impermissible
for New Hampshire lawyers to seek to review or use metadata received from opposing counsel.
In assessing the ethical obligations of both the sending and receiving attorneys with respect to
metadata, the Committee does not address issues relating to the discovery of electronic materials
in adjudicative proceedings, which are handled under applicable rules of court and law.
Discovery of electronic materials raises separate issues and rules that go beyond the scope of this
opinion.
DISCUSSION:
Ethical Obligations of Lawyers Sending Electronic Materials
Exchange of electronic documents is an essential part of modern law practice. At the same time
that advances in technology permit users to access metadata that may relate to another lawyer’s
representation of a client, the ethical obligation imposed upon lawyers to avoid such disclosures
remains unchanged. Protection of client confidences is one of the most significant obligations
imposed upon lawyers and forms the core of the attorney-client relationship. Rule 1.6(a)
provides that “[a] lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in order to carry
out the representation, or the disclosure is permitted by paragraph (b).” As stated in this
Committee’s comment to Rule 1.6, [t]he disclosure of client confidences is an extreme and
irrevocable act.” The confidentiality rule applies not only to matters communicated in confidence
by the client, but also to all information related to the representation, whatever its source. See
2004 ABA Model Rule Comment [3].
There is general consensus among jurisdictions reviewing the ethical obligations of lawyers who
send electronic materials to opposing counsel that they are ethically required to take reasonable
care to avoid improper disclosure of confidential information contained in metadata. See, e.g.,
ABA Formal Op. 06-442 (2006); FL Bar Ethics Op. 06-02 (2006) (“A lawyer who is sending an
electronic document should take care to ensure the confidentiality of all information contained in
the document, including metadata”); NY Bar Ethics Op. 782 (2004) (“a lawyer must exercise
reasonable care to ensure that he or she does not inadvertently disclose his or her client’s
confidential information”). The Ethics Committee agrees that a sending lawyer who transmits
electronic documents or files has a duty to use reasonable care to guard against disclosure of
metadata that might contain confidential information. However, the Committee also believes that
what constitutes reasonable care will depend upon the facts and circumstances, including the
subject matter of the document, whether there have been multiple drafts of the document with
multiple commenting parties, whether the client has commented on the document and other
relevant factors. Thus, there can be no per se rule on transmission of metadata.
Lawyers should consider the duty to provide competent representation under Rule 1.1, as well as
the general requirement under Rules 5.1 and 5.3 that lawyers make reasonable efforts to ensure
that their firms, including lawyers and non-lawyers, conform to the Rules. In general, lawyers
should be reasonably informed about the types of metadata that may be included in documents
when they are transmitted electronically and the steps that can be taken to remove it, if
necessary. Lawyers should stay abreast of technological advances and potential risks of
transmission through appropriate training and education. In the Committee’s view, lawyers
should acquire, at the very least, a basic understanding of the existence of metadata embedded in
electronic documents, the features of the software they have used to generate the document and
any practical measures that may be taken to limit the likelihood of transmitting metadata or to
purge the documents of sensitive information. This view is generally shared by other
jurisdictions that have reviewed this subject. See, e.g., ME Bar Ethics Op. 196 (2008).
The Committee recognizes that, as a result of rapid technological advances, some lawyers are
generally unaware of the myriad of ways that client confidences may be disclosed in the form of
metadata that accompanies electronic documents and files. However, unless lawyers obtain a
reasonable understanding of the risks inherent in the use of technology in transmitting and
receiving electronic materials that may contain confidential information, they risk violating their
ethical obligations to clients. Of course, this does not mean that lawyers must necessarily
purchase expensive computer software to ensure that metadata is removed or “scrubbed” from
documents in all cases. In most circumstances, lawyers can limit the likelihood of transmitting
metadata containing confidential information by avoiding its creation during document drafting
or subsequently deleting it, as well as by sending a different version of the document without the
embedded information through hard copy, scanned or faxed versions. See, e.g., ABA Formal Op.
06-442 (2006). Simply substituting a scanned version of sensitive documents may be adequate in
most circumstances.
Ethical Obligations of Lawyers Receiving Electronic Materials
In reviewing the ethical obligations of a lawyer who receives metadata from opposing counsel,
the Committee considered the variety of circumstances under which metadata might be received
and reviewed. For example, in the context of negotiating a contract, a sending lawyer might
intend the receiving lawyer to search and review red-lined comments in a draft document or to
review underlying formulas used to create a spreadsheet. Conversely, a sending lawyer may send
a draft contract that includes a client’s comment on “bottom line price” that the lawyer either was
unaware existed in metadata contained within a document or that the lawyer had unsuccessfully
attempted to eliminate. In the latter set of circumstances, the sending lawyer may have exercised
reasonable care in avoiding disclosure of client confidences through transmission of metadata but
was either unsuccessful or unaware of the receiving lawyer’s purposeful efforts to uncover
confidential information that may provide an advantage during negotiations. There is also the
possibility that receiving lawyer may use sophisticated software to reveal or recover information
not revealed by most programs.
New Hampshire’s Rule 4.4(b), Respect for Rights of Third Persons, was amended in 2008 to
provide guidance to lawyers who receive confidential information from opposing counsel or
third persons, as follows:
1. * * *
2. (b) A lawyer who receives materials relating to the representation of the lawyer’s client
and knows that the material was inadvertently sent shall promptly notify the sender and
shall not examine the materials. The receiving lawyer shall abide by the sender’s
instructions or seek determination by a tribunal.
3. * * *
4. New Hampshire’s Rule 4.4 varies from the American Bar Association’s (ABA’s) Model
Rule in several respects: by substituting “materials” for “document” to make clear that
electronic information is covered; by replacing “reasonably should know” with “knows”
to create an objective standard; and by adding a new second sentence to specify the
obligations of the receiving attorney with regard to inadvertently sent materials. See 2008
New Hampshire Comment to Rule 4.4. These differences are significant in light of the
ABA’s conclusion, shared by a number of jurisdictions, that there is no express ethical
prohibition against a receiving lawyer reviewing or using opposing counsel’s metadata.
See ABA Formal Op. 06-442 (“unless other law requires otherwise, a lawyer who
receives an inadvertently sent document ordinarily may, but is not required to, return it
unread, as a matter of professional judgment”). The ABA and several other jurisdictions
have tended to avoid the issue of whether disclosure of confidential information is
presumably inadvertent, preferring instead to apply a literal reading of the rule
prohibitions. The Committee rejects this approach, for the reasons set forth below.
While most jurisdictions agree that sending attorneys must take reasonable precautions to
prevent inadvertent disclosure of confidential information in the form of metadata, there is a split
on whether it is permissible for attorneys to review or use metadata received from their
opponents. For example, in concluding that the Model Rules of Professional Conduct generally
do not prohibit review or use of metadata, the ABA concluded that “the Rules do not contain any
specific prohibition against a lawyer’s reviewing and using the embedded information in
electronic documents.” ABA Formal Op. 06-442 (2006). Maryland has followed the ABA on this
point, concluding that “there is no ethical violation if the recipient attorney reviews or makes use
of the metadata without first ascertaining whether the sender intended to [send it]. MD Bar
Ethics Op. 2007-09 (2007).
The District of Columbia has articulated a view that the receiving lawyer is prohibited from
reviewing metadata sent by an adversary only where there is actual knowledge of inadvertence:
“[W]e believe that mere uncertainty by the receiving lawyer as to the inadvertence of the sender
does not trigger an ethical obligation by the receiving lawyer to refrain from reviewing the
metadata …”. DC Bar Ethics Op. 341 (2007). Colorado adopted a variation of the ABA view,
concluding that receiving lawyers may ethically search for and review metadata, but adding that
the receiving lawyer should know that any confidential information transmitted with the
metadata was transmitted inadvertently unless confidentiality was waived. CO Bar Ethics Op.
119 (2008). Pennsylvania has not adopted a conclusive view, deciding instead that each attorney
must exercise moral judgment under the principles of the Rules under particular factual
situations. PA Bar Ethics Op. 2007-500 (2007).
The Committee believes that all circumstances, with the exception of express waiver and mutual
agreement on review of metadata, lead to a necessary conclusion that metadata is “inadvertently
sent” as that term is used in Rule 4.4(b). In addition, because no lawyer would intentionally send
confidential information in violation of Rule 1.6, the receiving lawyer necessarily “knows” that
the information has been inadvertently sent. The objective standard dictates a conclusion that
receipt of confidential information in the form of metadata is the result of inadvertence, just as
receipt of attorney notes stapled to draft documents would necessarily be the result of
inadvertence. As a result, Rule 4.4(b) imposes an obligation on the receiving lawyer to refrain
from reviewing the metadata.
The Committee does not ascribe to the view that the lack of an express prohibition in the Rules
defines the extent of a receiving lawyer’s obligations. The Committee believes that purposefully
seeking to unearth confidential information embedded in metadata attached to a document
provided by opposing counsel implicates the broad principles underlying the Rules, including the
strong public policy in favor of maintaining client confidentiality. In the Committee’s view, there
is a shared responsibility on both sides to protect the attorney-client privilege through imposition
of a receiving lawyer’s obligation to refrain from reviewing confidential information that can be
nothing other than “inadvertently sent.” See Rule 4.4(b) (2008).
Because metadata is simply another form of information that can include client confidences, the
Committee sees little difference between a receiving lawyer uncovering an opponent’s metadata
and that same lawyer peeking at opposing counsel’s notes during a deposition or purposely
eavesdropping on a conversation between counsel and client. There is a general expectation of
honesty, integrity, mutual courtesy and professionalism in the New Hampshire bar. Lawyers
should be able to reasonably assume that confidential information will not be sought out by their
opponents and used against their clients, regardless of the ease in uncovering the information.
The Committee also rejects the ABA’s notion that sending lawyers can avoid harm to their
clients by negotiating confidentiality agreements in advance if there is any concern about misuse
of metadata. See ABA Formal Op. 06-442 (2006). While such agreements may be effective tools
in the context of litigation and discovery and are expressly sanctioned under court rules, they are
not as effective in transactional settings. There is often no way to effectively retract confidential
information, once learned, especially if it involves the subject matter of negotiations. Therefore,
unless receiving lawyers have a sound basis to believe that the information was intentionally sent
or there has been an express waiver of confidentiality, receiving lawyers should not take steps to
review or to use metadata embedded in documents received from opposing counsel. To the
extent that metadata is unintentionally reviewed, receiving lawyers should abide by the directives
set forth in Rule 4.4(b).
The Committee’s interpretation of the New Hampshire Rules is consistent with those
jurisdictions that have rejected the ABA conclusion that metadata can be ethically accessed.
These jurisdictions include New York, Florida, Alabama and Maine. In 2001, the New York
State Bar Association Committee on Professional Ethics concluded that a lawyer may not search
for or review metadata in electronic documents, relying principally on a lawyer’s ethical
obligation to refrain from dishonest, fraudulent or deceitful conduct, as well as conduct
prejudicial to the administration of justice. NY Bar Ethics Op. 749 (2001). New York also
concluded that “the use of computer technology in the manner described above constitutes an
impermissible intrusion on the attorney-client relationship in violation of the Code.” Id.
Interestingly, New York viewed mining of metadata to be a “deliberate act by the receiving
lawyer, not carelessness on the part of the sending lawyer, which would lead to the disclosure of
client confidences and secrets.” Id.
Since New York’s opinion was issued, Florida, Alabama and Maine have followed the same or
similar reasoning in concluding that receiving lawyers cannot review or use metadata. See FL
Ethics Op. 06-2 (2006) (It is the recipient lawyer’s concomitant obligation … not to try to obtain
from metadata information relating to the representation of the sender’s client that the recipient
knows or should know is not intended for the recipient”); AL Bar Ethics Op. 2007-02 (2007)
(“the receiving lawyer also has an ethical obligation to refrain from mining an electronic
document”); ME Bar Ethics Op. 196 (2008) (“an attorney may not ethically take steps to uncover
metadata embedded in an electronic document sent by counsel for another party, in an effort to
detect information that is legally confidential and is or should be reasonably known not to have
been intentionally communicated”).
CONCLUSION
New Hampshire lawyers who either send or receive electronic materials share an ethical
obligation to preserve confidential information relating to representation of clients. Sending
lawyers must take reasonable care to avoid improper disclosure of confidential information that
may be hidden within metadata accompanying electronic materials sent to opposing counsel. It is
impermissible for receiving lawyers to search for, review or use confidential information in the
form of metadata that is associated with transmission of electronic materials from opposing
counsel. This does not preclude opposing counsel from reaching mutual agreement on review of
metadata.
NH RULES OF PROFESSIONAL CONDUCT:
Rule 1.1
Rule 1.6(a)
Rule 4.4(b)
Rule 5.1
Rule 5.3

NH ETHICS COMMITTEE OPINIONS AND ARTICLES:

SUBJECTS:
Attorney-Client Relationship
Client Communications
Confidentiality
Inadvertent Disclosure
Conduct Towards Opponent
• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors and was
published in Bar News on May 15, 2009.