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Ethics: Reading outside the lines

Every Issue

Cite as: December 2012 86 (12) LIJ, p.71

Attempts to mine metadata for perceived advantage are likely to be unethical.

Litigation, especially where the stakes are high, has a tendency to be cutthroat. The adversary process encourages lawyers, in their partisan zeal, to secure for their clients every advantage at their opponent’s expense. Many litigation lawyers revel in this battle of tactics and wits. And many see it as a badge of honour to be able to capitalise on an opponent’s error, seeing this as a win.

The legitimacy of this approach to litigation is being challenged on several fronts. In hardly unique sentiments, the president of the New South Wales Court of Appeal has emphasised the responsibility of litigants, through their lawyers, “to exercise a degree of co-operation to express the issues for trial before and during the trial”, viewing this as “an essential aspect of modern civil procedure in the running of any civil litigation”.1 Statute in some jurisdictions now speaks of a lawyer’s duty to assist in facilitating the just, quick and cheap resolution of the real issues in the proceedings, upon the pain of personal costs liability.2 And the forthcoming Australian Solicitors’ Conduct Rules, in rule 30.1, prohibit a lawyer from taking “unfair advantage of the obvious error of another [lawyer] or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact”.

What is not explicitly addressed by judicial pronouncement or rules in Australia to date is the ethical status of a lawyer “mining” the metadata of electronic correspondence received from an opponent. The extent to which legal practice is permeated by electronic communications — which contain embedded information commonly termed “metadata” — coupled with the cutthroat approach to litigation adopted by many lawyers, no doubt create potential new avenues for deriving an advantage at an opponent’s expense.

Although most metadata may be of little import for this purpose (for instance, the date and time a document was last accessed or saved), the same cannot be said of metadata that reveals changes made to a document3 or comments in some way embedded in it. Being able to view various iterations of a document may give the reader a valuable, and otherwise unavailable, insight into an opponent’s case.

It has been argued that senders of electronic documents “expect the recipients to open the files and see exactly what the senders see on their computer monitors or on the printed versions of those files”, and “do not expect the file recipients to ascertain the changes they have made in those files”.4 In a 2007 ethics opinion the Alabama Bar branded the mining of metadata as “a knowing and deliberate attempt by the recipient attorney to acquire confidential and privileged information in order to obtain an unfair advantage against an opposing party”.5

Yet the American Bar Association, in an ethics opinion issued the year prior, saw no ethical impediment to this practice.6 Instead it threw on the sender a responsibility to “scrub” the metadata from the electronic document or to send the document in a different form. While it is clearly good practice to send electronic documents in a secure and stable form, the opinion sidesteps the real issue, namely the ethics underscoring a concerted attempt to mine an electronic document to discover what is otherwise hidden.

What influenced the opinion was the absence of a specific rule prohibiting the mining of metadata. Yet the lack of a rule explicitly proscribing conduct is not ordinarily determinative of its ethical legitimacy.7 The Committee, in its rule-based inquiry, did refer to rule 4.4(b) of the Model Rules of Professional Conduct and Practice, which states that “[a] lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender”. But as this rule is silent as to the ethical propriety of a lawyer’s review or use of such information, the Committee reasoned that the rule did not preclude the latter.

The above approach can be criticised for an over-reliance on rules to chart ethical conduct. But if resort is to be made to rules, it should be noted that the equivalent to rule 4.4(b) in the forthcoming Australian Solicitors’ Conduct Rules (rule 31) requires recipients of inadvertently disclosed information not to retain or use that material. Though not entirely on point vis-à-vis the mining of metadata, it suggests that this practice to secure a perceived advantage is unethical. This outcome aligns well with the fair play underscoring the challenges to unbridled partisanship noted at the outset.

GINO DAL PONT is Professor, Faculty of Law, University of Tasmania.

1. Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] per Allsop P.

2. See Federal Court of Australia Act 1976 (Cth) ss37M, 37N; Civil Procedure Act 2005 (NSW) s56; Civil Procedure Act 2010 (Vic) ss7, 28.

3. Via what is often termed the “tracking” function.

4. Craver, “Negotiation Ethics for Real World Interactions” (2010) 25 Ohio St J on Disp Resol 299 at 329–330.

5. Alabama State Bar Disciplinary Committee Op 2007-02 (2007). Several other American state bars have likewise ruled against the legitimacy of mining metadata, including New York and Maine.

6. ABA Committee on Ethics and Professional Responsibility, Formal Op 06-442 (2006).

7. The multiple instances where lawyers in the US were disciplined for engaging in sexual relations with clients preceding the enactment of a dedicated professional rule on the point illustrates this point: see, for example, Re Bourdon (1989) 565 A 2d 1052; Matter of Bowen (1989) 542 NYS 2d 45; Matter of Discipline of Bergren (1990) 455 NW 2d 856; In the Matter of Lewis (1992) 415 SE 2d 173; In the Matter of Berg (1998) 955 P 2d 1240.


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