Lawyers Beware: Sending Native File Documents To Third Parties May Violate Your Ethical Obligations

The rules governing discovery of electronically stored information, though not fully developed, have matured enough to provide the basic "do's and don'ts" for attorneys. Frequently, a party must produce electronic documents, such as Word documents, in their native format, rather than producing paper copies, in response to discovery requests; this obligation includes producing the document's metadata, the data automatically embedded in an electronic file that contain information about the document, such as its origin and history of revisions. But what are a lawyer's responsibilities concerning the transmission or receipt of metadata outside of the discovery context? A recent ethics opinion from the State Bar of Texas offers some guidance—and a stern warning: attorneys risk violating state rules of professional conduct if they mishandle metadata.

According to one source, the number of business e-mails sent and received worldwide each day is expected to exceed 120 billion this year. Attorneys have taken advantage of the speed, ease, and low cost of transmitting documents via e-mail; they share drafts of motions and pleadings with clients or co-counsel, for example, and exchange draft agreements with opposing counsel. When these documents are transmitted in their native format, they may include, unbeknownst to some senders or recipients, metadata containing confidential information.

The Professional Ethics Committee for the State Bar of Texas recently concluded that a lawyer must take "reasonable measures" to avoid transmitting metadata containing a client's confidential information to persons to whom such confidential information shouldn't be disclosed. See Professional Ethics Committee for the State Bar of Texas, Opinion No. 665, at 2 (Dec. 2016). This obligation, according to the committee, springs from two duties imposed under Texas rules of professional conduct: the duties of competence and confidentiality. Id.

These professional duties are not unique to Texas, so it is unsurprising that other states similarly require attorneys to handle metadata carefully. Lawyers in New York, for example, must exercise "reasonable care" to prevent the disclosure of metadata containing confidential information. See Committee on Professional Ethics, New York State Bar Association, Opinion No. 782 (Dec. 2004). Similar rules exist in Alabama, Arizona, Colorado, Florida, Maine, Maryland, Minnesota, Mississippi, New Hampshire, New Jersey, North Carolina...