West Virginia Lawyer Disciplinary Board Issues Legal Ethics Opinion on Metadata

On June 10, 2009, the West Virginia Lawyer Disciplinary Board issued Legal Ethics Opinion 2009-01 (What is Metadata and Why Should Lawyers Be Cautious?) to raise awareness among lawyers to be cautious when dealing with metadata. The opinion describes "metadata" as the data behind the data - including the location where the document is created, opened or saved, author's identity, number of revisions, comments and redlining.

The opinion concludes that lawyers have a duty on both ends. The lawyer sending electronic information has the burden of understanding what information may be contained in the electronic document and take reasonable steps to protect metadata in transmitted documents. Likewise, the receiving lawyer has the duty and burden when receiving inadvertently provided metadata to consult with the sender and abide by the senders instructions before reviewing such metadata.

The opinion also points out that different rules on removing metadata apply in the context of responding to discovery responses and subpoenas. In this case the electronic documents may be tangible evidence and the rules of professional conduct may prohibit the removal of metadata, subject to an assertion that the metadata is privileged.

More thoughts on the metadata opinion by Brian Peterson at West Virginia Legal Weblog.

The West Virginia Lawyer Disciplinary Board also issued Legal Ethics Opinion 2009-02 (Wholly-Owned Subsidiary Law Firms) on June 10, 2009. This opinion looks at the question of whether one law firm can organize a wholly-owned subsidiary law firm. The Board concluded that law firms are allowed to form wholly-owned subsidiary entities but cautioned that law firms should keep these entities transparent and fully disclose to the public and clients the relationship among the seperate entities.

were passed by the Lawyer Disciplinary Board at its June 5, 2009 meeting and entered on June 10, 2009. Click here 2009-01 and 2009-02 for the full Opinions.

WV Lawyer Disciplinary Board Seeks Comments on Metadata and Wholly-Owned Subsidary Law Firms

The Lawyer Disciplinary Board of the West Virginia State Bar is seeking public comment by February 27,2009, on two draft Legal Ethics Opinions (LEO). The two LEO's were reviewed by the Board at the October 24, 2008 meeting.

Draft L.E.O. 2009-01 What Is Metadata and Why Should Lawyers Be Cautious?
The definition of metadata used in the draft LEO is broad to include all "data behind the data" including the "author's identity, the number of revisions made and comments and redlining." Citing Rule 1.1 and 1.6, N.Y. State Bar Association Committee Op. 782 and D.C. Bar Op. 341, the proposed LEO places a duty on a lawyer to take reasonable steps to protect metadata in transmitted documents. Citing Rule 8.4(C) and N.Y. State Bar Association Committee Op. 749, the proposed LEO also places a duty on the lawyer receiving inadvertently provided metadata to consult with the sender and abide by the sender's instructions before reviewing such metadata.

Draft L.E.O. 2009-02 Wholly-Owned Subsidiary Law Firms.
The draft opinion allows a law firm to form a wholly-owned subsidiary law firm while cautioning lawyers that, in order not to deceive clients and the public, full disclosure of the relationship between the two firms is essential.

Comments must be submitted by February 27, 2009, to the Office of Disciplinary Counsel, 2008 Kanawha Boulevard East, Charleston, West Virginia 25311.