Do you use electronic files? Are you unwittingly sharing confidential information with opposing counsel? In this video Nerino Petro, State Bar practice management advisor, discusses how easy it is to accidentally share confidential information with opposing counsel or even your clients. Petro offers several simple solutions.
Feb. 20, 2013 – Metadata is included in all electronic files. It includes information such as the name of the file, the author, the company, total editing time, hidden comments, tracked changes, and previous authors. In this video Nerino Petro, State Bar practice management advisor, discusses how easy it is to accidentally share confidential information with opposing counsel or even your clients.
When does metadata become a problem? How can it be used against you?
Petro offers a couple of examples of how lawyers can accidentally share confidential information with clients and opposing counsel.
A client contacts you and wants you do a new lease for a building. You already have one going for another client, so you get that other file and start making changes to have it conform to the needs of this client. You send the client a bill for four or five hours of time, and the metadata left on the document shows that you only spent 30 minutes working on it. What do you say when the client calls you on this?
You are exchanging information with a client and you are embedding comments in the document, which may include information about the amount of money your client is willing to accept. You fail to remove those comments by scrubbing the metadata off the file when you send the document to opposing counsel. You’ve just lost your bargaining position.
Don’t forget, Formal Ethics Opinion EF-12-01: The Transmission and Receipt of Electronic Documents Containing Metadata issued in June of 2012. It essentially says as the sending attorney you have the obligation to make sure that no significant information is included in metadata in documents sent from your office. If you are the receiving attorney, there is nothing in the professional rules that prevents you from searching documents for metadata that might provide information you can use to best represent your client. If you inadvertently come across information, you do have an obligation to notify the sender, but you do not have to return the information to them and you are not prevented from using it in representing your client.
It’s easy to keep your secrets secret
According to Petro, preventing inadvertent disclosure of confidential information is simple.
Microsoft® provides an add-on utility
Office 2007 and 2010, Adobe, and WordPerfect®, include tools inside the programs
Third-party metadata scrubbing utilities, which range from $30 to $90, are also available. “They generally tend to work automatically, and you don’t have to think about it,” says Petro. “These products even look at your email and won’t let you send it with an attachment until you scrub it.”
Best Practice Tip
Petro advises converting your original file to a pdf format. This practice also prevents the other party from making changes to you document.
Petro also advises lawyers to get in the habit of scrubbing all documents – and attachments – before you send them and make it a policy in your office. You must be sure that your office staff gets in the habit as well.
For more information, contact Petro at practicehelp@wisbar.org.
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