BOB BERNSTEIN, TELL ME SOMETHING INTERESTING ABOUT LEGAL ETHICS AND TECHNOLOGY.

Posted By Cliff Tuttle | March 15, 2010

The Committee on Legal Ethics and Professional Responsibility issued  Formal Opinion 2009-100 addressing ethical issues arising from inadvertent transmission of confidential client information embedded in computer files.  Attorney Bob Bernstein, who has been active in the realm of law and technology and a past chair of the Allegheny County  Bar Association Professional Ethics Committee, addresses some of these problems, which affect every lawyer who uses a computer.

PLBT: Tell me something interesting about legal ethics.

BERNSTEIN: I just submitted an article for an Allegheny County Bar Association publication on inadvertent disclosure of confidential information by not cleaning metadata from documents when they are emailed.

PLBT: What kind of confidential information can a recipient harvest from an unscrubbed email?

BERNSTEIN:  A great deal. For starters, basic information such as –

– Your name

– Your initials

– Your company or organization name

– The name of your computer

– The name of the network server or hard disk where you saved the document

Digging a little deeper, the metadata can reveal —

– Other file properties and summary information

– Non-visible portions of embedded OLE objects

– The names of previous document authors

– Document revisions

– Document versions

– Template information

– Hidden text or cells

– Personalized views

– Comments

PLBT: Is converting a Word file to pdf format sufficient scrubbing to

protect confidential information?

BERNSTEIN: That can apparently prevent certain Word or Excel metadata from transmitting, but there is still pdf metadata that could be a concern — (things as simple as author and date, as well as notes and annotations made to the pdf).

PLBT: Is printing out and scanning a document before sending it to opposing counsel better than sending a pdf?

BERNSTEIN: Better?  I’m not sure how that is defined.  If you have a scanner and the document looks okay, then sure.  If not, then a pdf is fine, provided you are sure there are no extraneous comments or annotations embedded in the pdf document.  Remember, the Ethics opinions seem to put a duty of reasonable care on the lawyers to determine whether confidential information is embedded in the document.

Every document doesn’t have to be scrubbed, but you have to be sure there is no confidential information being “leaked.”  Most documents in most situations don’t have confidential information.  The issue is whether you have a way of protecting those that do.

PLBT: What software do you recommend to lawyers for stripping metadata from computer files?

BERNSTEIN: There are a number of programs, including Word!  I am not prepared to recommend any at this point, other than to say this is an issue that lawyers need to be aware of and concerned about.

PLBT: Approximately when do you expect your ACBA article to appear?

BERNSTEIN: Expected to run early April.

BOB BERNSTEIN IS MANAGING PARTNER OF BERNSTEIN LAW FIRM, PC. IN PITTSBURGH. HE WAS AN EARLY ADOPTER OF MANY FORMS OF LAW TECHNOLOGY INCLUDING ELECTRONIC DISCOVERY AND HAS ALWAYS GENEROUSLY SHARED HIS KNOWLEDGE WITH THE MEMBERS OF THE BAR.

For Bob Bernstein’s Linked In profile, click here.  For his profile on AVVO, click here.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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