Wednesday, 21 April 2010

Minnesota Ethics - Opinion 22 adopted

At the meeting of the Minnesota Lawyers Professional Responsibility Board at the end of last month Opinion No 22 was adopted.

This Opinion, originally drafted in January this year, addresses lawyers' ethical obligations regarding document metadata.

Minnesota joins many other Professional responsibility committees at several bar associations in other states in the US in adopting such an opinion. A summary table of most of the Ethics Opinions in place can be found at the ABA Technology Legal Resource Centre. Taking the ABA's table headings, the summary of the Minnesota Ethics opinion is:

What is the Sender's Duty When Transmitting Metadata?
"...a lawyer is ethically required to act competently to avoid improper disclosure of confidential and privileged information in metadata in electronic documents."
May the Recipient Review or "Mine" Metadata?
"Opinion 22 is not meant to suggest there is an ethical obligation on a receiving lawyer to look or not to look for metadata in an electronic document. Whether and when a lawyer may be advised to look or not to look for such metadata is a fact specific question beyond the scope of this Opinion."
Must the Recipient Notify Sender is Metadata is Found?
Yes - "If a lawyer receives a document which the lawyer knows or reasonably should know inadvertently contains confidential or privileged metadata, the lawyer shall promptly notify the document’s sender as required by Rule 4.4(b), MRPC."

The full Minnesota opinion can be found at

Friday, 26 February 2010

Opinions on document metadata in 2009

Finishing off a presentation for a screen-cast next week and wanted to check I had a date right (well it is Friday) and found the post below in draft. So, despite it being the end of the second month of 2010, a couple of ethics opinions released in 2009 and some links to resources on other ethics opinions:

In June 2009 West Virginia Lawyer Disciplinary Board released its ethics opinion on document metadata finding that there is a burden on an attorney to take reasonable steps to protect metadata in transmitted documents.

As reported in October 2009, this was followed by the Vermont Bar Association issuing an opinion on metadata.

The ABA has a table of the opinions that it maintains (last updated Sept 2009 at the time of writing). The LegalEthics website is another good source.

Thursday, 11 February 2010

Peer-to-Peer articles: access to documents from iPhone

There was a great response to the survey we ran in October with 236 legal professionals providing us with information on what mobile devices they and their firms use and the functions/applications they use the mobile device for, with particular focus on documents and email.

What with my analysis of these responses, writing the report on the results of the survey, in parallel writing an article on the ‘The Often Overlooked Mobile Security Gap’ for ILTA’s December edition of Peer-to-Peer (it is the lead article – see page 8 or download a copy), followed by a white paper ‘Document Metadata: The Mobile Security Gap’ that comments more in depth on the results of the survey pulling in results of other surveys around mobile usage that were undertaken in the latter part of 2009, not to mention a week's vacation with the family, the Christmas holidays, a week in Chicago followed by a week in New York for LegalTech, it's been a while since I last posted a blog entry!

There are numerous numbers of items worthy of comment from the intervening months. The reprint by TechnoLawyer this week of one of the other articles in December’s Peer-to-Peer magazine provides me with a good start point. The article is by Christopher Lewis of Sonnenschein Nath & Rosenthal LLP and looks at the iPhone as a business tool and how it enhances the productivity of the attorneys at Sonnenschein when they are mobile.

One of the items that caught my eye when I re-read the article in TechnoLawyer was the success story quoted where a Sonnenschein attorney was onsite with a client who didn’t have the documents needed. The attorney accessed the Sonnenschein content and collaboration portal using his iPhone, downloaded the documents and forwarded them to the client.

56% of the respondents to the 3BView survey said that they had access to centrally stored documents from their mobile device, ie they have the same capability as the Sonnenschein attorneys.

I hope (and suspect) that this figure will increase within 2010. Why? Take a couple of other statistics from the 3BView survey alone:
  • 39% of respondents store business documents on their mobile device. With my past experience in document management and also in DLP systems this makes alarm bells ring. I am sure the same bells are ringing for risk/security managers within law firms or for those with responsibility for corporate legal departments;
  • The majority of those who have access to centrally stored documents reported that they attach a document to an email they send from their mobile device at least once a month. A quarter of all respondents attach do so at least weekly.

The last thing on the attorneys mind in a situation such as the one that the Sonnenschein attorney found themself in will be the fact that they are bypassing any desktop based tools including any that scrub document metadata.

As I’ve been stating in articles/papers to date, and will keep on saying throughout this year and beyond, increasing productivity of the legal professional even when they are mobile makes sound business sense. However, the management, control and security measures in place for in office equipment must be extended to mobile devices. This includes document security aspects such as scrubbing metadata.