Metadata, e-records ethics opinions still in the works

first_img Metadata, e-records ethics opinions still in the works July 1, 2006 Regular News The Bar Board of Governors has gotten updates on two pending proposed ethics opinions — on metadata and transferring paper documents to electronic records — and asked Bar staff to redraft an older ethics opinion on public attorneys representing city and county officials at the Florida Ethics Commission.The board, at its recent meeting, accepted the recommendation of the Board Review Committee on Professional Ethics to ask Bar staff to redraft Ethics Opinion 77-30.That opinion held in some cases it might be a conflict for an attorney hired to represent an entire county commission to represent a single commissioner before the Ethics Commission.The City, County, and Local Government Law Section recommended that the opinion be changed, saying it was overbroad, said BRC Chair Steve Chaykin. But the Professional Ethics Committee recently recommended no change, saying the opinion was limited to a narrow set of facts.Local governments have said the opinion can cost them needless expense to hire outside counsel to defend individual city and county commissioners facing frivolous ethics complaints.“The BRC voted to defer action and direct staff to draft a revised opinion addressing issues of waiver and consent for the next [board] meeting,” Chaykin reported.The board ratified that action.On the two proposed ethics opinions, which are being circulated for comment by the Professional Ethics Committee, Chaykin said no comments had been received on PAO 06-1. That deals with lawyers converting paper documents to electronic records — a subject of increasing interest as lawyers take steps to preserve clients’ files from hurricanes and other natural disasters.That means that opinion can be made final with no further action by the PEC.But Chaykin said several comments had been received on PAO 06-2, which deals with metadata. That’s information that is not visible but accompanies an electronic document and can reveal who has worked on the document, editing changes, and even confidential client communications if those were attached at one time to the document.“The opinion says that the sender has an obligation that client confidential information that the recipient is not intended to have should be removed from the document,” Bar Ethics Counsel Elizabeth Tarbert told the board. “There is a concomitant requirement by the recipient not to look for information that the recipient was not intended to have.”No board action was required because the PEC was still getting feedback from lawyers, to be considered at its June 23 meeting at the Bar’s Annual Convention (after this News went to press). But Chaykin said the BRC would be giving input to the ethics panel.“The BRC agreed it was unclear what the definition of metadata is. So the definition should be expanded,” he said. “The language regarding the recipient’s obligation is unclear — what information the recipient should not be mining, can they mine for the author, but not for changes. There is no affirmative obligation to do anything if you in fact receive metadata.”President-elect Hank Coxe asked if the opinion would affect pretrial discovery, saying that was a concern for some attorneys.“It’s communications between attorneys, not documents where metadata would be part of discovery,” Tarbert answered.The issue could reach the Board of Governors if there is an appeal from the PEC’s final opinion. Another dealing with representing public officials being redrafted Metadata, e-records ethics opinions still in the workslast_img

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