Tuesday, April 26, 2011

Ethics 20/20 commission on outsourcing and confidentiality of metadata

According to information in the ABA/BNA Lawyers' Manual on Professional Conduct, at its eighth meeting, held April 15-16 in Washington, D.C., the ABA Commission on Ethics 20/20 agreed on the substance of tentative recommendations that it expects to make to the ABA House of Delegates next year for modernizing ethics standards on the outsourcing of services and confidentiality issues arising from modern technology.

As to the outsourcing of legal services, the commissioners agreed that the rules should instruct lawyers to obtain informed client consent in most instances before they allow other lawyers to work on a client's matter.

Interestingly, this is already the law in Illinois where Rule 1.2(e) states that "after accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer not in the lawyer's firm the responsibility for performing or completing that employment, without the client's informed consent."

As for the issues regarding technology, the commission endorsed the idea of adding a black-letter rule recognizing that lawyers have an affirmative obligation to safeguard client information no matter what forms of technology they use to generate, transmit, and store data.

Although there is nothing wrong with this proposal, I am not sure it adds anything to the well established duty of confidentiality, other than to say to lawyers that they have to be careful not to disclose confidential information by accident -- something we knew already.

In addition, the commissioners have decided to suggest that the presence of metadata in a document tranferred electronically does not, by itself, suggest an inadvertent disclosure. Thus, the commissioners largely agreed that the presence of metadata should not in itself trigger a duty to notify the sender.

I am not sure I agree with this. I could be wrong but I think that when a document has metadata it is more than likely the result of inadvertence.

UPDATE (5/7/11):  The Legal Ethics Forum has links to the documents and comments on them here.

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