Can a lawyer use software to pull hidden data and prior drafts out of an electronic document an opposing lawyer sent?

Plain-English summary

The committee considered software that lets a recipient "get behind" what appears on screen in an e-mail or electronic document and recover revisions made at various stages, deleted material, and sometimes the identity of those who made the revisions. Using it, a lawyer who received the final draft of a contract from opposing counsel could see prior drafts and learn who edited them, without the sender's knowledge or consent. Whether senders can reliably block this access was, at the time, a matter of debate among technologists.

The committee concluded that a lawyer may not ethically use this technology to surreptitiously examine and trace e-mail and other electronic documents from another party's counsel. It grounded the conclusion in the lawyer's duties: DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 1-102(A)(5) (conduct prejudicial to the administration of justice), together with the protection of client confidences and secrets under DR 4-101 and Canon 4, the duty in DR 7-102(A)(8) not to engage in illegal conduct or conduct contrary to a Disciplinary Rule, and Canon 7. The committee treated the surreptitious retrieval of information the sender did not intend to transmit as the kind of deceitful, unfair conduct those rules forbid.

The opinion situated the question within the committee's electronic-communication line, including N.Y. State 709 (1998), which had addressed when the sensitivity of information or a known risk of interception requires a more secure means of communication than unencrypted Internet e-mail.

Currency note

This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer use software to recover an opponent's prior drafts from a document file?

A: No. The opinion concluded lawyers may not surreptitiously examine and trace electronic documents to uncover information the sender did not intend to reveal.

Q: Which duties did the committee rely on?

A: The opinion relied on DR 1-102(A)(4) and (A)(5) (dishonesty and conduct prejudicial to the administration of justice), DR 4-101 and Canon 4 (confidences), DR 7-102(A)(8), and Canon 7.

Q: Did the opinion address a sender's duty to scrub documents?

A: It focused on the recipient's conduct, but it placed the question within the committee's electronic-communication line, including N.Y. State 709 on choosing a secure means of communication when information is especially sensitive or interception is a known risk.

Background and rules framework

The opinion interpreted New York's former Code of Professional Responsibility: DR 1-102(A)(4) and (A)(5) (misconduct), DR 4-101 and Canon 4 (confidences and secrets), DR 7-102(A)(8) and Canon 7 (conduct in representation), and EC 4-1. The Model Rule analogues are Rule 8.4(c) (dishonesty, fraud, deceit), Rule 4.4(b) (handling inadvertently sent material), and Rule 1.6 (confidentiality). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 8.4(c) (dishonesty, fraud, deceit); MR 4.4(b) (inadvertently sent material); MR 1.6 (confidentiality)
• NY DR 1-102(A)(4), DR 1-102(A)(5), DR 4-101, DR 7-102(A)(8)

Other opinions cited:

• N.Y. State 709 (1998): when sensitivity or interception risk requires a more secure means than unencrypted e-mail

See also

• NY State Bar Op. 782: Metadata in e-mailed documents
• NY State Bar Op. 1076: Blind-copying a client on email to opposing counsel

Source

• Landing page: https://nysba.org/opinion-749/