Metadata can expose lawyers to ethical concerns

When a document is created on a computer, information about the document (for example, the date it was created) is automatically generated. This information is referred to as metadata or hidden data. It is not visible in the document, but it is part of the document. Metadata can also be inserted deliberately. For example, an author can place comments about the document in its metadata. Microsoft Word, Excel, and PowerPoint all add metadata to each document they create. Adobe Acrobat PDFs and WordPerfect files also contain metadata. This data can be hidden in many places within each document. Metadata may be accessed by anyone who can open the electronic file, including clients and opposing counsel. For example, a lawyer who receives the final draft of a contract from an opposing lawyer may be able to view revisions or learn who made them.

To view some metadata, open a Word document, click on File> Properties> and select any of five choices offered by the dialog box (General, Summary, Statistics, Contents, Custom). Each selection shows different information. Word generates much of this metadata automatically. The General selection shows the date and time the document was created (and modified and accessed), the size of the document, and the location of the document. The Summary selection shows the title of the document, the author's name, and the author's company, among other things. Users can also manually add comments about the document into fields under the Summary tab. Under the Statistics tab, anyone with access to the document can find the amount of time spent editing it, the name of the person who last saved it, the number of revisions, the date it was printed, and word count information. The Custom selection shows other documentation that the author chooses to include, such as the typist's name, the names of people the document was forwarded to, and the name of the client.

A Word file contains more metadata than what is found under Properties. Additional investigation can uncover routing slip information, templates, document versions, hidden text, embedded graphics, hyperlinks, and the last 10 authors of a document. Although metadata is not visible on the face of a document, text that has been added or deleted can be made visible if the document's author applies Word's Track Changes. This feature records all changes made to the document and, when parties are collaborating on a document, remembers which user made which changes. To turn this feature on, click on Tools> Track Changes> Highlight Changes> Track Changes While Editing. To view the changes on the screen, select Highlight Changes on screen. Similarly, select Highlight Changes in printed document to view the changes on paper. The author always may turn off the Track Changes feature during editing or before sending the document to another person. However, previously tracked changes will be visible to recipients of the document if they know to select Highlight Changes on screen, even if the author never selected it.

By itself, metadata is not sinister. It is intended to be useful to the author of the document. For example, before creating a new document out of an older one, an author can check its last modification date to ascertain whether it is already up-to-date enough to use for the new purpose. However, metadata can assuredly inconvenience an author as well. An attorney could inadvertently betray confidential information simply by forwarding a Word document without deleting the metadata first. When this occurs the authoring attorney and the recipient attorney could face embarrassment, ethical problems, or even malpractice exposure.

In 2001, the New York State Bar Association’s Committee on Professional Ethics held, in its Ethics Opinion 749, that it was unethical for a lawyer to surreptitiously examine and use metadata that an opposing lawyer failed to remove from a document e-mailed over the Internet. The committee explained that for a recipient lawyer to view the metadata was "an impermissible intrusion" into the attorney-client relationship. Claiming that it was unclear how to effectively block access to metadata, even by sophisticated computer users, and that "it is a deliberate act by the receiving lawyer, not carelessness on the part of the sending lawyer, that would lead to the disclosure of client confidences and secrets," the committee opted not to hold the sender liable for failing to remove the metadata.

Over time, the existence of metadata has become more well-known, and tools to remove it more readily available. So much so in fact, that in 2004, the New York State Bar Association’s Committee on Professional Ethics decided it was hold the sending attorneys responsible. The Committee held, in its Ethics Opinion 782, that “[sending] Lawyers have a duty…to use reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets.”

Deleting Metadata

Many sources suggest that before sending an electronic file that is as laden with metadata as, for example, a Word document, attorneys should translate it into WordPerfect, rich text format, or portable document format. Unfortunately, only some, not all, metadata may reliably be removed through conversions. Some metadata is transferred to the new document and, of course, new metadata can be added as soon as a user starts editing the new document. The same is true even when the user employs the Select All, Copy, New Document, and Paste technique. To avoid transferring metadata, the user needs to use Paste Special and choose the Unformatted Text option. Unfortunately, using Unformatted Text also removes all the text and paragraph formatting that the user took pains to apply to the original.

Microsoft offers a free tool that it claims will remove hidden data. This tool, however, only works with Word 2003/XP, Excel 2003/XP, and Power Point 2003/XP files. The download is available at www.microsoft.com/downloads. Word 2002 and 2003 also have security options that can remove some metadata. According to many experts however, it doesn't remove all hidden data. Further, according to metadata expert Donna Payne, Microsoft's add-on tool would be more useful if it emulated her company's application, Metadata Assistant (http://tinyurl.com/4ykyn), which works with more versions of Word, Excel, and Power Point than Microsoft's plug-in. According to Payne, Metadata Assistant can analyze versions 97, 2000, 2002 (XP), and 2003. The application displays its findings and offers a variety of options to remove the metadata. In addition, the software is integrated with e-mail applications and document management systems. Metadata Assistant can be customized and has technical support. The company recently added a new feature that cleans and converts a file into a PDF. This software costs $79 per work station, there is an enterprise price, and a free, limited-function trial version is available for download. The application can operate as a stand-alone that can clean multiple documents simultaneously or from within one Word, Excel, PowerPoint, or Outlook document at a time.

Other third-party software developers have also recognized the need for removing metadata. For example, Kraft Kennedy & Lesser's ezClean (www.kklsoftware.com) analyzes and removes metadata from Word, Excel, and PowerPoint files and is integrated with Outlook. The price, however, may be prohibitive to many solo attorneys and small firms that do not need 25 licenses (the required minimum) at $20 per user. A fully functional, 45-day free trial version of the software is available for download at the site.

Work Share Protect (http://www.workshare.com/products/wsprotect/) analyzes and cleans Word, Excel, and PowerPoint documents, and it allows users to convert the cleaned document to a PDF without a copy of Adobe Acrobat. This application also integrates with Lotus Notes and Novell's Group Wise as well as Outlook. Work Share Protect starts at $29.95 per user (for a one-year license). A free trial version is available.

No third-party metadata removal software exists for WordPerfect, but Corel now offers a Metadata Removal Patch for the X3 version of its Office Suite, as well various tips on how to remove metadata from earlier versions of its software.

Since the New York State Bar published its first Ethics Opinion on metadata, much more information has been made available about metadata and how to remove it. Their second opinion takes a much broader view of the metadata issue and the responsibility of all attorneys to use whatever tools are at their disposal to protect client confidences in teh electronic docments they send. Even in the absence of specific, fully established guidelines regarding metadata, lawyers should develop the habit of vetting metadata before transmitting electronic files.