Letter From The President Of The New York County Lawyers' Association

2008-09-01 01:00

To The Readers Of The Metropolitan Corporate Counsel:

For attorneys of my generation, technology has transformed the tools of our profession. When I was a young associate, the basic tools were a legal-size pad and a pencil. Research was done manually in the library; Lexis (no Nexis yet) was in its infancy and was viewed as an extra resource, not the obvious starting point.

Today, everything is different. A young associate is totally wired. Documents are transmitted to one's colleagues and adversaries by email and, in many jurisdictions, filed in court or with government agencies electronically. Research skills consist of mastering a wide array of digital databases with the assistance of librarians who specialize in electronic resources.

Not surprisingly, legal precedents did not anticipate today's digital world. Consider Opinion No. 738, recently published by NYCLA's Committee on Professional Ethics, which can be found at: www.nycla.org/siteFiles/Publications/Publications1154_0.pdf. The opinion discusses a lawyer's ethical obligations when the lawyer receives from an adversary (not in the course of document discovery) "electronic documents that appear to contain inadvertently produced metadata." (Metadata means information describing the history, tracking or management of an electronic document; it may, for example, allow the reader to identify the author's thought process by examining the progressive changes to the document.)

Opinion No. 738 analogizes the situation to inadvertent transmission of privileged information and concludes, "A lawyer who receives from an adversary electronic documents that appear to contain inadvertently produced metadata is ethically obligated to avoid searching the metadata in those documents. While attorneys are advised to . . . [scrub] documents to ensure that they are free of metadata, an adversary may not ethically take advantage of a breach in the attorney's care by intentionally searching for metadata. Using the metadata is unethical if . . . the recipient is likely to find opposing counsel's work product or client confidences or secrets . . . ."

What is surprising about this opinion is not its conclusion but the fact that the American Bar Association reached the opposite conclusion in ABA Formal Op. 06-442 (2006). While the state bar associations of New York, Alabama and Arizona have reached the same conclusion as NYCLA, the District of Columbia Bar Association reached an intermediate result, opining that a lawyer was prohibited from searching an opponent's metadata only where the lawyer has actual knowledge that the metadata was sent inadvertently.

This divergence of opinion on a fairly basic question makes manifest the difficulty of applying pre-digital law to legal issues involving sophisticated technology. Patent lawyers have been struggling for many years with the appropriate treatment of computer-implemented algorithms, but the mismatch between precedent and technology is not confined to matters of intellectual property. This year's headlines have featured an extended controversy over government monitoring of internet access, in addition to conventional wiretapping.

In my field, lawyers and legislatures are grappling with the consequences of technologically assisted reproduction. Are frozen embryos produced through in vitro fertilization property? If the embryos' parents divorce, can the mother seek to give birth to an embryo if the father objects? What is the appropriate balance between fairness and finality in dividing an estate where afterborn children could appear years after a parent's death? In the not-too-distant future, courts may have to decide whether someone is really, irretrievably dead. Witness the controversy over whether the physical remains of baseball immortal Ted Williams should be placed in cryogenic storage.

All of this points to a need for better communication and understanding within the bar of issues involving technological innovations. Lawyers who cling to ignorance of technological developments - either as it affects their professional tools or as it affects the law - will be at an increasing disadvantage as time goes on.


Ann B. Lesk