FLORIDA BAR ETHICS OPINION
September 15, 2006
Advisory ethics opinions are not binding.
A lawyer who is sending an electronic document should take care to ensure the confidentiality of
all information contained in the document, including metadata. A lawyer receiving an electronic
document should not try to obtain information from metadata that the lawyer knows or should
know is not intended for the receiving lawyer. A lawyer who inadvertently receives information
via metadata in an electronic document should notify the sender of the information’s receipt.
The opinion is not intended to address metadata in the context of discovery documents.
4-1.1, 4-1.2, 4-1.4, 4-1.6, 4-4.4(b)
93-3, New York Opinion 749, New York Opinion 782
Williams v. Sprint/United Management Company, 230 F.R.D. 640, 96 Fair
Empl.Prac.Cas. (BNA) 1775 (2005)
David Hricik and Robert B. Jueneman, “The Transmission and Receipt of
Invisible Confidential Information,” 15 The Professional Lawyer No. 1, p. 18
(Spring 2004), The Sedona Guidelines: Best Practice Guidelines and
Commentary for Managing Information and Records in the Electronic Age,
Appendix F (The Sedona Conference Working Group Series, Sept. 2005 Series),
Michael Silver, “Microsoft Office metadata: What you don’t see can hurt you”
Tech Republic Gartner 2001, Brian D. Zall, “Metadata: Hidden Information in
Microsoft Work Documents and its Ethical Implications,” 33 Colo. Lawyer
No.10, p. 53 (Oct. 2004)
The Board of Governors of The Florida Bar has directed the committee to issue an
opinion to determine ethical duties when lawyers send and receive electronic documents in the
course of representing their clients. These ethical responsibilities are now becoming issues in the
practice of law where lawyers may be able to “mine” metadata from electronic documents.
Lawyers may also receive electronic documents that reveal metadata without any effort on the
part of the receiving attorney. Metadata is information about information and has been defined
as “information describing the history, tracking, or management of an electronic document.”1
1 The Sedona Guidelines: Best Practice Guidelines and Commentary for Managing Information and Records in the
Electronic Age, Appendix F (The Sedona Conference Working Group Series, Sept. 2005 Series), available at
http://www.thesedonaconference.org. The Microsoft Word and Microsoft Office online sites also contain detailed
information about metadata, showing examples of metadata that may be stored in Microsoft applications and
explaining how to remove this information from a final document. Examples of metadata that may be hidden in
Microsoft documents include the name of the author, the identification of the computer on which the document was
typed, the names of previous document authors and revisions to the document, including prior versions of a final
Metadata can contain information about the author of a document, and can show, among other
things, the changes made to a document during its drafting, including what was deleted from or
added to the final version of the document, as well as comments of the various reviewers of the
document. Metadata may thereby reveal confidential and privileged client information that the
sender of the document or electronic communication does not wish to be revealed. 2
This opinion does not address metadata in the context of documents that are subject to
discovery under applicable rules of court or law. For example, the opinion does not address the
role of the lawyer acting as a conduit to produce documents in response to a discovery request.
The Florida Rules of Professional Conduct require lawyers to protect information that
relates to the representation of a client. Rule 4-1.6(a) provides as follows:
(a) Consent Required to Reveal Information. A lawyer shall not reveal
information relating to representation of a client except as stated in subdivisions
(b), (c), and (d), unless the client gives informed consent.
The Comment to Rule 4-1.6 further provides:
A fundamental principle in the client-lawyer relationship is that the lawyer
maintain confidentiality of information relating to the representation. The client
is thereby encouraged to communicate fully and frankly with the lawyer even as
to embarrassing or legally damaging subject matter.
In order to maintain confidentiality under Rule 4-1.6(a), Florida lawyers must take
reasonable steps to protect confidential information in all types of documents and information
that leave the lawyers’ offices, including electronic documents and electronic communications
with other lawyers and third parties.
Rule 4-4.4(b) addresses inadvertent disclosure of information and provides as follows:
A lawyer who receives a document relating to the representation of the lawyer’s
client and knows or reasonably should know that the document was inadvertently
sent shall promptly notify the sender.
2 Further references regarding metadata and eliminating metadata from documents may be found on Microsoft’s
user support websites at http://support.microsoft.com/kb/290945 and http://support.microsoft.com/kb/q223790/. See
also, Michael Silver, “Microsoft Office metadata: What you don’t see can hurt you” Tech Republic Gartner 2001
http://techrepublic.com.com/5100-1035_11-5034376.html. The court’s discussion of metadata in Williams v.
Sprint/United Management Company, 230 F.R.D. 640, 96 Fair Empl.Prac.Cas. (BNA) 1775 (2005) is also very
The comment to rule 4-4.4 provides additional guidance:
Subdivision (b) recognizes that lawyers sometimes receive documents that
were mistakenly sent or produced by opposing parties or their lawyers. If a
lawyer knows or reasonably should know that such a document was sent
inadvertently, then this rule requires the lawyer to promptly notify the sender in
order to permit that person to take protective measures. Whether the lawyer is
required to take additional steps, such as returning the original document, is a
matter of law beyond the scope of these rules, as is the question of whether the
privileged status of a document has been waived. Similarly, this rule does not
address the legal duties of a lawyer who receives a document that the lawyer
knows or reasonably should know may have been wrongfully obtained by the
sending person. For purposes of this rule, “document” includes e-mail or other
electronic modes of transmission subject to being read or put into readable form.
Some lawyers may choose to return a document unread, for example, when
the lawyer learns before receiving the document that it was inadvertently sent to
the wrong address. Where a lawyer is not required by applicable law to do so, the
decision to voluntarily return such a document is a matter of professional
judgment ordinarily reserved to the lawyer. See rules 4-1.2 and 4-1.4.
The duties of a lawyer when sending an electronic document to another lawyer and when
receiving an electronic document from another lawyer are as follows:
(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard
the confidentiality of all communications sent by electronic means to other
lawyers and third parties and to protect from other lawyers and third parties all
confidential information, including information contained in metadata, that may
be included in such electronic communications.
(2) It is the recipient lawyer’s concomitant obligation, upon receiving an
electronic communication or document from another lawyer, not to try to obtain
from metadata information relating to the representation of the sender’s client that
the recipient knows or should know is not intended for the recipient. Any such
metadata is to be considered by the receiving lawyer as confidential information
which the sending lawyer did not intend to transmit. See, Ethics Opinion 93-3
and Rule 4-4.4(b), Florida Rules of Professional Conduct, effective May 22,
3 The ethical implications of such hidden information in electronic documents have been discussed in legal
journals and ethics opinions in other states, The New York Bar Association has issued Opinion 749 (2001), which
concluded that attorneys may not ethically use computer software applications to surreptitiously “mine” documents
or to trace e-mail. New York Ethics Opinion 782 (2004), further concluded that New York 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. Legal commentators have published articles about ethical issues involving metadata. David
(3) If the recipient lawyer inadvertently obtains information from metadata
that the recipient knows or should know was not intended for the recipient, the
lawyer must “promptly notify the sender.” Id.
The foregoing obligations may necessitate a lawyer’s continuing training and education
in the use of technology in transmitting and receiving electronic documents in order to protect
client information under Rule 4-1.6(a). As set forth in the Comment to Rule 4-1.1, regarding
To maintain the requisite knowledge and skill [for competent representation],
a lawyer should engage in continuing study and education.
Hricik and Robert B. Jueneman, “The Transmission and Receipt of Invisible Confidential Information,” 15 The
Professional Lawyer No. 1, p. 18 (Spring 2004). See also, Brian D. Zall, “Metadata: Hidden Information in
Microsoft Work Documents and its Ethical Implications,” 33 Colo. Lawyer No.10, p. 53 (Oct. 2004).