The Ethics of Metadata Mining: Ethics Opinion 665 Raises More Questions than Answers

January 6, 2017

Recently, the Texas State Bar released Ethics Opinion 665. In addition to outlining the ethical obligations of Texas lawyers in protecting privileged metadata from disclosure outside the normal course of discovery or litigation (see Mind your Metadata: Ethics Opinion 665 Identifies Basic Competencies in Working with Metadata), Ethics Opinion 665 also addresses the obligations owed by a lawyer who receives another party’s inadvertently-sent, protected metadata. Ultimately, absent “dishonesty, fraud, deceit, or misrepresentation”, making a false representation of material fact to a tribunal, and/or violating any local practice rules, Ethics Opinion 665 suggests that when a lawyer receives another party’s protected information outside discovery and the lawyer believes her client may be “exposed to material risk” by the lawyer’s intended use of the information received, the receiving lawyer’s first responsibility is to her client. In fact, according to Ethics Opinion 665, the decision of how to proceed under these circumstances (i.e., to review or employ the information for the client’s benefit) may belong to the client.

Metadata is extra information that is automatically created and embedded in an electronic document. Metadata may include such information as the author of the document, the date or dates on which the document was revised, track revisions to the document, note comments inserted in the margins of the document, or point to hidden data. Most frequently, the metadata embedded in a document is of little or no interest. When functions like “Track Changes” are used, however, metadata may contain protected communications between attorney and client. Through hidden metadata, these protected communications may be inadvertently transmitted, thus waiving the privilege.

Outside the normal course of discovery, the Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party’s confidential information. Further, metadata mining is not (yet) expressly prohibited. However, the Texas Disciplinary Rules of Professional Conduct do require that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation” and shall not knowingly “make a false representation of material fact or law to a tribunal.” Accordingly, as Ethics Opinion 665 outlines, when outside the scope of normal discovery, it is not clear that the receiving lawyer’s mining of inadvertently-sent, protected data is prohibited by the Rules.

Per Ethics Opinion 665, if the receiving lawyer believes her client is “exposed to material risk” by the lawyer’s intended treatment of the inadvertently-sent, protected metadata, the lawyer should discuss the risks and the benefits of—as well as alternatives to—the lawyer’s proposed course of action with her client. Currently, the most notable of the potential consequences of improper use of metadata is disqualification of the lawyer. See In re Meador, 968 S.W.2d 346, 351–52 (Tex. 1998). Accordingly, if the client is comfortable with the possibility of her counsel being disqualified, the receiving lawyer may utilize the metadata if so instructed by her client absent “dishonesty, fraud, deceit, or misrepresentation”, making a false representation of material fact to a tribunal, or violating local practice rules. Ethics Opinion 665 is careful to qualify whether the Texas Disciplinary Rules are violated under these circumstances “will depend on the specific facts of each situation, the applicable law, and the rules of the governing tribunal.” For now, Ethics Opinion 665 raises more questions than answers as to the permissibility of metadata mining outside of normal discovery.