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
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If a lawyer receives an electronic document containing knowledge of the metadata being unintentionally sent, the lawyer should not review the information before consulting with the sending lawyer, to determine whether the metadata included is work-product or of confidentiality. However, if the receiving attorney is not sure whether the disclosure was unintentional, he\she is encouraged, but not required, to seek clarification from the sending party before reviewing the information.
“Lawyers, in light of this fundamental principle, and in keeping with their status as members of a learned profession, should refrain from conduct that amounts to an unjustified intrusion into the client-lawyer relationship that exists between the opposing party and his or her counsel”. ER 8.4(a)-(d).
The client- lawyer relationship is a fundamental principle attorneys promise to sustain. In the absence of the client’s informed consent, an attorney cannot reveal information relating to their representation. This principle was put in place to protect the public, full and open communication by the client is always encouraged, but is not possible if the client- lawyer trust has been broken. The client is