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Ethical Concerns

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Submitted By debrajacks
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When creating a document on a computer, information about the document is automatically generated. This is considered metadata, also known as hidden data. This information is not visible in the document, but is considered to be part of the document. An author can place comments about the document in the metadata, meaning this hidden data can be inserted deliberately. This data can be hidden in many different places within the document. Metadata can be accessed by anyone who can open the electronic file, this includes clients and opposing counsel.
There is a conflict concerning legal ethics when viewing the metadata of opposing attorney’s documents. According to Florida, Op. 06-2, settled “[a] lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer.” Although, looking at your opposing attorney’s metadata is wrong, it is still permissible.
Many firms use removal tools or “scrubbers” to remove private information from documents before sending them to a third party. Despite the most reasonable precautions, and even with the best intentions, it may not be possible to completely erase (scrub) potentially harmful metadata from documents before it is conveyed electronically. The sending lawyer would be “at the mercy” of the retrieving attorney.
Lawyers sending communications or other documents electronically, need to know such activities have an inherent risk. A lawyer must take reasonable procedures to prevent the unintentional disclosure of confidential information. At the same time, and except in certain circumstances, lawyers who receive an electronic communication cannot examine it for the purpose of discovering the metadata. Also, the receiving lawyer who discovers metadata in an electronic communication, who knows or reasonably should know that the

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