While recently participating in a lecture, I had the opportunity to review some material on metadata. While most of the information was irrelevant to my practice, I did take away something important regarding preservation of client confidences and protection of privileged information when sending documents electronically.
First, understand that under RPC 4.4, unintentional misdelivery of information or documentation to an opponent requires only that the recipient advises you of its receipt. There is no prohibition against the subsequent use of such received information under the Rule. Thus, misdelivery of information to an opponent can provide them with an unintended advantage, and may result in a charge of malpractice.
One way of unintentionally providing an adversary with confidential information or other advantage is by using Microsoft Word’s “Track Changes” program, or a similar program, which redlines your document and records changes.
Assume that you email a proposed document back and forth with your client, which will eventually be sent to your adversary. During the process of creation, there are many different versions; indeed, some of the versions produced by the client contain confidential or harmful information. Moreover, during the drafting process, you or another lawyer in your firm inserted comments that reference your case goals and strategy. Then, once the document is complete, you click on ‘final’ and send it directly from the Word program to your adversary.
What you have actually sent may be the entire document in all stages from initial creation to the final version. The recipient only needs to right click the document to bring up the redlined version. Once received, the recipient can use that information to their advantage or your client’s disadvantage.
The lesson here is to never send a document out of Word or similar program directly via email. Always, after you have completed a document, save it as a PDF document, and send and save the PDF document.
Chris McDonough, Esq.
New York Grievance Attorneys: Lawyers for Lawyers