Washington State Bar Association issues opinion on metadata

A few days ago, I posted a summary of a new opinion on an attorney's obligation when receiving a document by mistake (see here). A more complex problem arises when the document is received in electronic format (as a Word or Pdf file sent by email, for example).  In such a case, the document may contain important meta data, often easily accessible.  As explained in the ABA Center for Professional Responsibility website,

Metadata is loosely defined as "data about data." More specifically, the term refers to the embedded stratum of data in electronics file that may include such information as who authored a document, when it was created, what software was used, any comments embedded within the content, and even a record of changes made to the document.

While metadata is often harmless, it can potentially include sensitive, confidential, or privileged information. As such, it presents a serious concern for attorneys charged with maintaining confidentiality -- both their own and their clients. Professional responsibility committees at several bar associations around the country have weighed in on attorneys' ethical responsibilities regarding metadata, but there is no clear consensus on the major metadata issues. To help track current views on metadata and ethics, we've assembled the following chart.

A number of jurisdictions have issued opinions on the duties of an attorney who receives documents with metadata.  The Washington State Bar Association recently issued the most recent opinion on the subject.  You can read the full text of the opinion, which is very short, here.  Go here for a summary of the opinions on this subject from other jurisdictions. I also recently mentioned (here) an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.

According to the recent WSBA opinion, lawyers may review readily accessible metadata that an opposing counsel unwittingly transmits in an electronic document but must not use software to extract such metadata from a “scrubbed” document.  It places the duty to prevent the disclosure of data on the sender and only imposes on the recipient a duty to notify the sender that the document contains readily accessible metadata.  The recipient is not ethically obligated to stop reading the document or to return the document, but cannot attempt to dig up metadata that the sender affirmatively tried to remove. Such conduct would violate the rules regarding respect for third parties' rights and conduct prejudicial to justice.

How not to practice law: don't take depositions seriously

An attorney in Miami removed from a case by a U.S. District Judge for scheduling depositions at a Dunkin’ Donut shop, appearing in shorts and tee-shirts, drawing pictures of male genitalia to mock opposing counsel, and playing video games during depositions.  Go here for the full story.

Do attorneys have a duty to be up to date in the latest "technology"?

The Legal Talk Network has a podcast on whether there is a duty to know about modern technology here.

Another one of those "worst lawyer commercials" post

Here is yet another compilation of bad lawyer commercials. 

Suggestions on how to make sure the mandatory pro bono program in NY is a success

A couple of weeks ago I reported that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar.  See here.  Then I reported on the fact that not everyone liked the idea. See here.

Now there's more.  Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has written an article with suggestions on how to make sure New York's program works effectively.  You can read the full article here.

Nevada Supreme Court holds prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea

In a new case addressing the issue for the first time, the Nevada Supreme Court has held that a prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea.  The case is called Nevada v. Huebler and it is available here and here. 

Given Brady v. Maryland and the rules of professional conduct related to the special responsibilities of prosecutors you would think this is self evident.  But it isnt.  Some courts have held that a defendant can't challenge the validity of a guilty plea by arguing a Brady violation.  In Huebler, the court explains that "[t]his issue arises because Brady evolved from the due-process guarantee of a fair trial, . . . and therefore has been described as a trial right, . . .  but when a defendant pleads guilty, he waives several constitutional guarantees, including the due-process right to a fair trial, and any errors that occurred before entry of the plea."

After discussing the conflicting case law, the court agreed with other courts that have held that not requiring prosecutors to disclose exculpatory evidence before negotiating plea agreements could tempt prosecutors to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas.  In the end, the court concluded that

"[w]hile the value of impeachment information may depend on innumerable variables that primarily come into play at trial and therefore arguably make it less than critical information in entering a guilty plea, the same cannot be said of exculpatory information, which is special not just in relation to the fairness of a trial but also in relation to whether a guilty plea is valid and accurate.  For this reason, the due-process calculus also weighs in favor of the added safeguard of requiring the State to disclose material exculpatory information before the defendant enters a guilty plea.

It is not every day that an innocent person accused of a crime pleads guilty, but a right to exculpatory information before entering a guilty plea diminishes the possibility that innocent persons accused of crimes will plead guilty."  

Ethics 20/20 Commission has filed its final resolutions

Thanks to Andrew Perlman, of the Legal Ethics Forum and the 20/20 Commission for the following announcement and links:

Yesterday, the ABA Commission on Ethics 20/20 filed final versions of its resolutions and reports with the ABA House of Delegates.  The House will vote on the resolutions at the ABA's Annual Meeting this August.

You can find the Commission's overarching summary and report here.  If you're only interested in a description of what the Commission is proposing and why, this document should do the trick.

If you want more details, the Commission's resolutions and accompanying reports can be found at the following links:

Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)

Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)

Admission by Motion (proposals affecting the Model Rule on Admission by Motion)

Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5) 

Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)

Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

Judge Removed For Pursuing Unwanted Romance With Attorney

The Legal Profession Blog has a report on a case in which the Delaware Supreme Court has ordered the removal of a family court judge for attempting "to establish an inappropriately close social relationship with a young female attorney" who regularly appeared before him.

Article on the demise of mega firm Dewey & LeBoeuf

The law firm of Dewey & LeBoeuf was created in 2007 in the largest merger of law firms in history. During the past few weeks reports have been coming in that it is falling apart.  Last week its partners were told “to seek out alternative opportunities.” The firm is falling apart because of financial problems.   Here is a link to a short article in the New York Times that claims the firm's troubles "are only an extreme version of those facing many other firms."

Two reports on consequences for conduct in violation of Rule 3.3: one criminal prosecution of criminal defense lawyer and one disbarment

In a rare criminal prosecution of a defense lawyer, a prosecutor today at trial accused a veteran attorney in Washington of devising a scheme to use fake evidence and perjured testimony to clear a client in a drug case.  The Blog of the Legal Times has the story here.

Meanwhile in an unrelated story, the Legal Profession Blog is reporting on the disbarment of a lawyer who admitted to using false evidence in a case.