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November|December 2005
Leaving One-Child Behind By Michelle Chen
Display Cases By Laura Longhine
Uneasy Riders By Paul Wachter
Not Bloody Guilty By Dana Mulhauser
The Prudent Jurist By William H. Simon
Cases & Controversies

The Prudent Jurist

Some law firms invite potential clients to e-mail legal questions. Firms that handle class action lawsuits often ask possible members of a class to complete online questionnaires. Does submitting information through a firm's website create an attorney-client relationship that obligates the firm to keep information confidential?

By William H. Simon

AN ATTORNEY-CLIENT RELATIONSHIP can be established through any type of communication, but it takes more than just a request for advice from a prospective client; the lawyer must accept the request for a relationship to be created. The lawyer's duty of confidentiality does not require a full-fledged attorney-client relationship—it usually takes effect the moment a prospective client seeks advice and remains in effect whether or not the lawyer ultimately agrees to provide counsel. Confidentiality norms are meant to encourage people to seek legal assistance; if confidentiality depended on the establishment of an attorney-client relationship, people would be reluctant to speak candidly when looking for representation.

However, people who provide information to lawyers over the Internet should be aware of the distinction that the law makes between requesting legal advice and trying to call attention to possible illegal conduct. Traditional confidentiality norms protect advice-seekers but not necessarily whistleblowers. Exposing wrongdoing may be praiseworthy, but it won't always be shielded by professional confidentiality.

Microsoft Word and other word processing programs contain features that allow anyone who receives a Word or WordPerfect document by e-mail to see "metadata," the hidden information about how, when, and by whom the document was created. The metadata may include previously deleted information, like editorial comments, remarks about strategy, legal advice, or names of informants—and much of that information may be confidential or privileged. Does a lawyer who transmits documents containing confidential metadata violate any ethical obligation to her client? Does a lawyer who receives the documents have a duty not to review the metadata?

THERE WAS A TIME WHEN THE INADVERTENT TRANSMISSION of e-mail attachments containing metadata harmful to a client might have been excusable, but that is no longer the case. The metadata problem is now widely known, and any lawyer who uses a computer and communicates by e-mail has an obligation to address it. Information technology consultants can show lawyers how to "reverse edit" documents to remove any digital fingerprints. They can configure office systems so that no e-mail goes out without a prompt asking the sender if she wants to remove metadata. A lawyer who fails to take such steps can justly be accused of malpractice.

Whether a lawyer who accidentally receives metadata should refrain from looking at it is a harder question. There are three views on the subject.

The Marquess of Queensberry view says that a lawyer should be above looking at information that he was not meant to receive. The street-fighter view says that as long as the recipient was not responsible for the mistake, he owes it to his client to take advantage of the other side's blunder. The Solomonic view splits the difference. It says that, if the sender took appropriate precautions but the metadata was transmitted because of some glitch, the receiver should avert his eyes. If, on the other hand, the metadata was included in the e-mail because of carelessness, the receiver is free to look. It is reasonable to assume that most metadata disclosures these days are the result of carelessness. It is also reasonable to assume that only the most high-minded lawyers will refrain from looking.

Various laws require someone who is engaged in a legal proceeding, or who anticipates being so engaged, to preserve relevant evidence. Many companies routinely make backup copies of all e-mails generated by their employees in case of an emergency system failure that destroys the primary copies. The backups are often eliminated or overwritten after a relatively brief period. Once litigation is in prospect, does a company's duty to preserve evidence extend to backup as well as primary copies?

THE MAXIM OF PRUDENCE IS, WHEN IN DOUBT, hang on to it. Although President Richard Nixon regretted not destroying the Watergate tapes, the act of destroying all but the most egregious evidence is usually more inculpatory than the evidence itself. Even when the wholesale destruction of data is standard procedure, material that is pertinent to litigation or a government investigation should be preserved.

In the most extensive judicial consideration yet of these issues, however, United States District Court Judge Shira Scheindlin recently ruled that a duty to preserve e-copies does not normally include backups. She did add two qualifications: If a company's backup tapes are "accessible" and "actively used for information retrieval," the company's owner ought not to deprive the government or adverse parties of comparable use; and if the owner knows that the backups contain relevant matter not available elsewhere, she would not be justified in destroying it.

William H. Simon teaches professional responsibility at Columbia Law School and is a contributing editor of Legal Affairs.

Questions for the Prudent Jurist can be sent to prudentjurist@legalaffairs.org.

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