Metadata Ethics Opinions by ABA

The attorneys' professional responsibility to keep certain information confidential is nothing new but what if confidential, privileged, or otherwise sensitive information is inadvertently revealed via electronic file transfer because that information happened to be part of the document's metadata? American Bar Association (ABA) has recently tackled such situation and created a comparative chart displaying the attorneys' responsibility regarding metadata and ethics in various jurisdictions around the U.S.

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.

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Can Supreme Court Be Influenced By Blogging?

Social Media Law Student blog has a nice post titled "Can Blogs Influence the Supreme Court?" by Josh Camson. In this post, Josh reviews an article by Stanford Law student, Rachel C. Lee, titled Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era.

Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty—they are already capable of having a substantial impact on Supreme Court litigation.

Rachel based her argument on the 2008 decision in Kennedy v. Louisiana, 554 U.S. __, 129 S.Ct. 1, 171 L.Ed. 2d 932 (2008) and continues on saying that events surrounding this decision ...

[d]emonstrate that blogs can both highlight errors in Court decisions and generate new arguments relevant to ongoing litigation. In addition, legal blogs create the opportunity for Supreme Court advocates to engage in ex parte blogging—posting persuasive material about a pending case in the hopes of directly influencing the Court’s decisions.

Attorneys for parties and amici in cases before the Court already sometimes post arguments online about their cases shortly after oral argument—potentially a crucial time in the Court’s decision-making process—and evidence suggests that the Justices and their clerks may well encounter some of these posts online. Yet no one has analyzed the ethical implications of this practice, or what its effects might be on different groups appearing before the Court. This Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications.

Any thoughts? Feel free to share!

Overcharging For Legal Research?

Via Law.com, an article titled Lawsuit Claims Chadbourne Overcharged for Computerized Legal Research, discusses - what some believe to be the widely spread common practice of many law firms - overcharging for legal research. Do really law firms overcharge? Do law firms pay flat fee? Do they have to pay for hidden cost that are posed by the legal databases' providers? How should law firms bill their clients for the time spent on legal research and for the expense incurred when conducting legal research?

A California plaintiffs attorney has filed a lawsuit against a New York-based law firm on behalf of a former client of the firm for what she claims is a hidden but widespread practice within the legal profession: law firms secretly profiting off legal research fees by overcharging clients. Follow: Waggoner v. Chadbourne & Parke, No. BC408693 (Los Angeles Co., Calif., Super. Ct.).

Consumer protection attorney, Patricia Meyer at Patricia A Meyer & Associates, said that many similar law suites are being filed or just about to. She believes this is "unfair business practice" within the legal profession and continues on saying:

I know I'm not the most popular person in town right now, but that's okay. This is something that needs to be corrected.

Any thoughts? Feel free to share your comments!

New Attorney Ethics Standards for N.Y.

The new code of conduct for N.Y. attorneys is effective Wednesday, April 1. This NYLJ article explains the differences between the current and new rules

Differences between the old code and the new rules largely concern the more expansive definitions provided in the new guidelines . . . For instance, the new code declares that conflict waivers must be the product of informed consent confirmed in writing. "Informed consent," "confirmed in writing" and "writing" are all defined in the new rules. . .

Metadata - What Is It and What Are My Ethical Duties?

An interesting piece by Jim Calloway published on January 5, 2009 and available here, at LLRX.com presents the insight on the need to understand at least the basics of metadata.

The legal ethics implications of metadata “mining” are no longer just of interest to the lawyers processing electronic discovery or the ethics mavens. The ethical implications of one lawyer examining the metadata in a file received from another lawyer have generated a lot of discussion. This article will cover the legal ethics opinions issued so far and give you tips on how to avoid exposing confidential information unintentionally via metadata.

Take a minute and read about what metadata is, author's conclusion regarding the ethical implications, ethics opinions on metadata, and some of the suggested ways to guard against metadata disasters. And, of course, feel free to share your experiences!

NY Adopts New Rules of Professional Conduct

New York Law Journal has this story on the adoption of new rules of professional conduct that align New York more closely with the ABA Model Rules.

The Rules of Professional Conduct align ethics standards in form and numbering sequence with the American Bar Association's Model Rules of Professional Conduct. That change will make it easier for New York attorneys to reference ethics rules and advisory and legal opinions nationwide when researching issues, supporters of the new rules say. "It is a tremendous relief to now speak the same language as the rest of the country," said Steven C. Krane, chairman of the New York State Bar Association's Committee on Standards of Attorney Conduct, which proposed the revisions. "The code is dead. Long live the rules." Starting April 1, 2009, the Rules of Professional Conduct will replace the New York Code of Professional Responsibility.