WSBA Issues Advisory Opinions on Cloud Computing and Metadata

The Washington State Bar Association recently released two advisory opinions relating to the ethical use of technology in the practice of law. Issued by the Rules of Professional Conduct Committee, these advisory opinions address the use of cloud computing and “metadata” in electronic documents. The complete text of the cloud computing opinion (opinion 2215) can be found here, and that of the metadata opinion (opinion 2216) here.

Cloud computing, as embodied by such applications as Google Documents or Dropbox, is an increasingly important and constantly evolving technology. As such, WSBA notes the impossibility of imposing specific guidelines for the use of cloud computing services. Instead, the opinion invokes the duty of competence, as well as the duties to protect client confidentiality and property, to formulate a general rule: “A lawyer may use online data storage systems to store and back up client confidential information as long as the lawyer takes reasonable care to ensure that the information will remain confidential and that the information is secure against risk of loss.”

Metadata in electronic documents poses a slightly more convoluted problem, as it must address the behavior of at least two interacting attorneys. The advisory opinion posits three hypothetical situations to help illustrate the ethical duties invoked. Distilled, the opinion finds that lawyers, under their general requirement of competence, have a duty to make reasonably sure that confidential metadata is removed from documents sent to opposing counsel, with an exception for electronic material sent or received during discovery.

Lawyers receiving documents have various ethical duties, depending on the conduct of the sending attorney – if a received document contains “readily accessible metadata,” the receiving lawyer has a duty to “promptly notify” the sender of this fact. However, if the sending attorney notifies the receiver that such metadata is present, and requests that the receiver refrain from reading, and return the document, the receiver has no duty to comply, barring any separate duties that may arise from the nature of the document. The receiver may voluntarily comply with the sender’s request as a matter of consultation with his client and his professional discretion.

Where electronic documents have been properly “scrubbed” of metadata, WSBA finds that it is a violation of ethical rules to use software designed to restore such metadata. Although there is no direct prohibition against the use of such software, the opinion notes that efforts to restore erased metadata would violate a number of ethical rules regarding the proper gathering of information.

These two rulings represent a solid step forward in ensuring that legal ethics in Washington State evolve in sync with the technology underpinning modern legal practice.