At a conference I recently attended, I heard a rumor that the ABA was going to issue an opinion saying it was okay to view metadata sent in a document outside the context of discovery between lawyers. Further, the rumor is they'll say that it's unethical not to scrub it out before you send it.
I've spoken to hundreds, if not a thousand or more, lawyers from small and medium size firms around the country about this, and the ABA's position is, imho, premature at best. Until there's a larger body of lawyers who know about metadata, it should be presumed that its transmission was not intentional; putting the rule the way the ABA apparently intends to do it will result in sharp tactics by large firm lawyers, and little else. Bad idea, ABA, bad idea! (Hopefully the rumor was wrong!)
As previously mentioned on this blog and elsewhere, New York is considering some major changes to its advertising rules, including an ill-advised attempt to impose restrictions on lawyers who attempt to contact accident victims within thirty days of an accident. (Professor Freedman does a nice job of explaining why the rule would be such a bad idea in his comments to my earlier post.) To make matters even worse, New York is now considering expanding its definition of advertising to encompass all "computer accessed communication," including blogs. (You may recall that there was a similar attempt in Kentucky to define advertising this way.)
Unfortunately, the history of bar associations is littered with attempts (like this one) to restrict lawyer advertising in the name of professionalism or the profession's public image. (See pages 1001-1003 of this article that I wrote a few years ago.) But the reality is that lawyer advertising very rarely has the negative consequences that bar associations presume. For example, former Chief Justice Warren Burger set up a Commission to sudy the effects of lawyer advertising on public opinon and found that "it is principally lawyers -- not clients -- who are concerned about the style and message of certain legal advertising." Comm'n on Professionalism, A.B.A., "...In the Spirit of Public Service" A Blueprint for the Rekindling of Lawyer Professionalism (1986).
Since then, another ABA study reached a similar conclusion, finding that the relationship between advertising and public image is "questionable." ABA Comm'n on Advertising, Lawyer Advertising at the Crossroads: Professional Policy Considerations 3 (1995). Indeed, the Commission concluded that, "[w]hile the legal profession strongly believes that advertising contributes to the decline of the profession's image, the public rarely mentions advertising as a factor."
As with other advertising restrictions that bar associations have produced over the decades, New York's proposed regulations ultimately restrict lawyer speech without any clear evidence as to how those restrictions will benefit either the legal profession or the public.
Following up on David's link to Patricia Dunn's testimony, and an article today in the WaPo covering the resignation of HP's general counsel, I continue to believe that the most interesting aspect of the HP leak scandal, from the legal ethics point of view, is the attempt by lawyers to create or take advantage of plausible deniability. The client -- here, Dunn and her allied directors (interesting MR 1.13(a) question) -- wanted to figure out who was leaking details of board meetings. Ask yourself how plausible it is to think that a high-powered businessperson, with lots of experience in the high tech industry, could believe that you can obtain the phone records of private citizens or conduct electronic surveillance of computer networks without breaking the law. ("Dunn professed not to know that illegal tactics were used.") Did Patricia Dunn reallythink she was supervising an investigation that was entirely above-board? No way. What she thought was if the lawyers told her it was okay, she would be insulated from liability, because she wouldn't have the requisite mens rea of knowledge.
Enter the lawyers. Although the company's general counsel has resigned -- and properly so -- for doing nothing to stop the illegal activity, the point person on the investigation seems to have been senior counsel and chief ethics director (that's great!) Kevin Hunsacker. But the plan to insulate upper management from knowledge went awry when an HP employee disclosed his "serious reservations" about the methods being used. (This, by the way, is a common feature of legal ethics scandals. There's always someone, like Sherron Watkins in the Enron case, who asks the inconvenient questions to which others have been turning a blind eye. And once the question is asked, it's no longer tenable to ignore the inconvenient facts.) The employee who raised these concerns sent an email to ethics guru Hunsacker. Hunsacker then asked how phone records were being obtained, and was told that it involved "some ruse." His reply is classic, and is probably going to end up in the next edition of many legal ethics casebooks: "I shouldn't have asked." Yup, you shouldn't have asked. The problem is, as the lawyer blessing this activity you have to ask. Otherwise any legal advice given to the client will not be reasonably well informed. If the client relies on your advice to its detriment, you've just committed malpractice.
Thus, the attempt to create plausible deniability by not asking hard questions is inconsistent with the duty of care owed by the lawyer to the client. It's impossible for a lawyer to represent a client competently and diligently, while also turning a blind eye to inconvenient facts.
This case probably impacts these disclaimers concerning e-mail ("we don't represent you so don't send us confidential info") and other aspects of DQ practice. The court in In re Englehardt, 2006 WL 2640415 (Tex. App. -- Houston [1st. Dist.] Sept. 11, 2006, orig. proceeding), denied a petition for mandamus sought to overturn the grant of a motion to disqualify filed by a prospective client who had disclosed confidential information to a firm during an initial interview. The court denied the petition to overturn the disqualification order even though the movant had signed a form prior to the interview that stated that nothing disclosed during the interview would be confidential: "The initial consultation is not intended to establish an attorney client relationship... Any confidential matter whch might involve the attorney/client priivlege should be delayed until you have been retained by this office." (Not exactly the words I would have chosen!) (Texas, by the way, doesn't have 1.18 but has a comment to its version of Rule 1.9 (1.09) that seeks to achieve the same purpose.)
E-mail is obviously still "different" in that the client sends the information unilaterally, without an agreement by the lawyer to meet with and receive the information from the client. However, some bar associations are holding that having the e-mail address on the web is an invitation to send information -- and that makes the circumstances fairly parallel. (Also, as noted below, a New York court reached that same conclusion with respect to a statute about faxes -- having a number out there might be "implied consent" to have a fax sent.
This fact (nicely analyzed by White Collar Crime Profs Blog) is too much. In class I often use the image of the ethics ostrich (which I can no longer remember whether I thought up or lifted from someone else) to describe people who stick their heads in the sand to avoid actual knowledge. There are good Friendly and Posner opinions on why this doesn't work. But to stick your head in the sand after acquiring knowledge? Geez.
Maybe the lawyer in question took some unreported action to verify the legality of this practice. One hopes.
Just an fyi - I posted on ssrn a tome I'd written about the use of experts and investigators, and it goes into the caselaw on the propriety of "pretexting" (wish I'd know the word at the time I wrote it) and similar conduct. You can find it here.