Reading Between the Lines

A fundamental principle of legal ethics is that lawyers shall not reveal confidential client information to any third parties. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct (TDRPC) reads in part:

(a) Confidential information includes both privileged information and unprivileged client information. . . . Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to:

(i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.

Rule 1.01 requires that a lawyer be competent:

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless:

(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or

(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

(b) In representing a client, a lawyer shall not:

(1) neglect a legal matter entrusted to the lawyer; or

(2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.

(c) As used in this Rule neglect signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.

Comment 8 to Rule 1.01 makes clear that technological competence is expected: 

Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. [emphasis added]

The first question posed here is whether this competence requirement covers removing metadata from documents provided to opposing counsel.  The Committee on Professional Ethics considered this question in Ethics Opinion 665 and concluded that:

“. . .  a lawyer’s duty of competence requires that lawyers who use electronic documents understand that metadata is created in the generation of electronic documents, that transmission of electronic documents will include transmission of metadata, that the transmitted metadata may include confidential information, that recipients of the documents can access metadata, and that actions can be taken to prevent or minimize the transmission of metadata. Lawyers therefore have a duty to take reasonable measures to avoid the transmission of confidential information embedded in electronic documents, including the employment of reasonably available technical means to remove such metadata before sending such documents to persons to whom such confidential information is not to be revealed pursuant to the provisions of Rule 1.05.” [emphasis added]

According to the opinion, whether a lawyer has taken reasonable measures to avoid the disclosure of confidential information in metadata will depend on the factual circumstances. Relevant factors in determining reasonableness include the steps taken by the lawyer to prevent the disclosure of the confidential information in metadata, the sensitivity of the metadata revealed, the identity of the intended recipient, and other considerations appropriate to the facts. The Committee emphasized that not every inadvertent disclosure of confidential information in metadata will violate Rule 1.05.

The second question is whether Penelope had any duty to do anything upon her discovery of the metadata.  The Committee on Professional Ethics found that the rules provide no clear guidance on this issue, but ultimately concluded that she did not, with some caveats:

“ . . . although the Texas Disciplinary Rules do not prohibit a lawyer from searching for, extracting, or using metadata and do not require a lawyer to notify any person concerning metadata obtained from a document received, a lawyer who has reviewed metadata must not, through action or inaction, convey to any person or adjudicative body information that is misleading or false because the information conveyed does not take into account what the lawyer has learned from such metadata. For example, a Texas lawyer, in responding to a question, is not permitted to give an answer that would be truthful in the absence of metadata reviewed by the lawyer but that would be false or misleading when the lawyer’s knowledge gained from the metadata is also considered. [emphasis added]

Because there is no evidence that Penelope misused the information in any way, she did not violate the Rules.  Because Rory took no action to scrub the sensitive client information from the document, he did violate Rules 1.01 and 1.05.  The best response is B.