In Ethics Opinion 2009-1, Vermont has taken its place in line behind several other states that have found that a lawyer who produces electronic documents has a duty of reasonable care to avoid disclosing confidential metadata. This is a straightforward approach that translates easily to a lawyer’s everyday practice.
The same cannot be said of the lawyer on the receiving end of the electronic document production. The Vermont Bar Association found that:
“to insert an obligation into the Vermont Rules of Professional Conduct that would prohibit a lawyer from thoroughly reviewing documents provided by opposing counsel, using whatever tools are available to the lawyer to conduct this review.”
Vermont’s ethics rules also mandate that the receiving lawyer must notify the producing party “if he knows or reasonably should know that the document was inadvertently sent.”
Okay, fine. But how would this work in practice? Metadata is in a special class of data/documents because it often reveals corrections, deletions, comments, etc. that reveal attorney-client communications or attorney work product. If the receiving party does not have the consent of the producing party to review metadata but is permitted to do so any way, doesn’t the Vermont rule amount to an invitation (if not an obligation) to mine for privileged data and then speak up later? Vermont’s substantive state law may limit how or whether such data may be used, but still, isn’t this an unreasonable intrusion into the attorney-client relationship?
Other states’ (e.g., Arizona, Florida, New Hampshire) ethics rules disincentive such mischief by prohibiting a lawyer receiving electronic communications from examining it for the purpose of discovering embedded metadata absent special circumstances (consent, accident). Isn’t this bright-line rule more consistent with a lawyer’s ethical obligations of honesty and forthrightness?