The Minnesota Office of Lawyers Professional Responsibility has been busy with its opinions in the last year, amending two prior opinions, proposing and approving two new opinions, and proposing a third new opinion that is currently open for comment. The two relatively new opinions cover the use of the term “& Associates” in a firm’s name (if you are a solo, it’s a no go) and the duty of a lawyer to discuss his or her own malpractice with the client (the new opinion says it’s mandated in certain circumstances).

The currently proposed opinion, Opinion No. 22, covers that scintillating technical topic known as metadata, or what many folks simply call “data about data.” I could cover another few pages about metadata, including where to find it, how to find it, how to scrub it, and what it looks like when it’s downright embarrassing, but that’s all been done many times over and is the subject of numerous CLE seminars, typically about about e-discovery issues. I’ll just cut to the chase: the new proposed opinion takes a decidedly reasonable ground on the issue of guarding against inadvertent disclosure of confidential metadata, simply extending to metadata a lawyer’s duty not to knowingly reveal confidential client information. Nothing really new there.The opinion attempts to take a decidedly middle ground on a thornier issue of what to do if you receive “inadvertently sent” metadata in documents from an attorney or anyone else. The proposed opinion states:

If a lawyer receives a document which the lawyer knows or reasonably should know contains inadvertently sent metadata, the lawyer shall promptly notify the document’s sender as required by Rule 4.4, MRPC.

I’m scratching my head about what to do with a document that I reasonably “should know contains inadvertently sent metadata,” as nearly every electronic document contains such metadata, or at least metadata the sender has provided but has no idea that it’s there (does that make it inadvertent?). Some of that data, as the comments in the proposed opinion states, are harmless or even helpful, as the data allows parts of the document to be displayed. But how are we to know, or reasonably know, it was inadvertently sent and was not otherwise intended to be scrubbed?

I’m certain the board intended to mean “confidential or privileged” metadata, as the Colorado Bar Association made clear in its similar opinion on the subject. Otherwise, lawyers may, in the opinion of the board, be subject to ethical problems if they do not notify a sender each time they receive documents containing metadata, no matter its weight or importance.

Luckily, the opinion is open for comment through March 10, and I expect it may be revised to make a lawyer’s duty regarding receipt of inadvertently sent metadata more clear. If not, I can already imagine the disclaimers being added to e-mails and other correspondence, possibly along the lines of:

This email has been sent by me. This email (and any attachment) is confidential and is intended for the use of you only, presuming you are the addressee. If you are not the intended recipient of this email, or if this e-mail contains metadata that I sent by accident or did not even know existed, you must not copy, distribute, take any action in reliance on it or disclose it to anyone, nor should you right-click or double click anywhere, use the “Options” feature of Outlook, try to see what’s behind my desk, or even determine my favorite font (it’s Franklin Gothic Book). Any confidentiality or use of my really important metadata that I am not aware of is not waived or lost by reason of my mistaken delivery of that data to you. It is very important that, before opening this e-mail or any attachments, you check them for viruses and defects and also consult Opinion 22 of the Minnesota Office of Lawyers Responsibility.