I’m fortunate enough this week to be in Austin, Texas in order to share a stage with the wonderfully-talented Lynda Shely on Friday to talk for an hour on ethics at the DRI Employment and Labor Law seminar. Working off of a hypothetical that has a “cribbed” from the headlines if not a “ripped” from the headlines sort of feel, we will address two hopefully interwoven topics: the risk of UPL and thorny issues of attorney-client privilege and work product protection arising out of multi-jurisdictional practice — and specifically a multi-state investigation involving employment issues. So, time available for blogging at the tail end of this week is tight.
In the interest of squeezing some actual substantive content in between self-promotional items, here’s the cream filling for this Oreo cookie.
Earlier this month, New Jersey adopted revisions to its ethics rules to specifically address metadata. (New Jersey announced this in a press release that also included announcements that it was adopting the Uniform Bar Exam and finally permitting lawyers licensed in other jurisdictions to obtain admission by motion in New Jersey.) In so doing, New Jersey is the most recent jurisdiction to address whether it is ethical for lawyers to engage in “metadata mining.” Most other jurisdictions that have addressed the topic to date have done so through the issuance of a formal ethics opinion treating metadata as information (to some extent just like any other) and running the analysis of what to do through its existing rules on what a lawyer must do if they receive information they believe was inadvertently sent. New Jersey, though, has decided to address by revising its Rule 4.4(b) and seeding the Comment to that rule with metadata-specific language.
As the administrative determination put out by the New Jersey Supreme Court explains, in addition to amending the black letter of its Rule 4.4(b), New Jersey is adopting new language in a comment that appears to get to the same place as quite a few other jurisdictions have albeit in a bit of a stilted fashion. The comment explains to a lawyer that they are free to review unrequested metadata in an electronic document received but only if they reasonably believe that the metadata was not inadvertently sent.
And, I mentioned a few weeks ago that I’d put something here on the blog once the Second Edition of Professional Responsibility in Litigation was available for purchase. Well, this is that something. You can order it from the ABA through this link. At that link, if you’d like, there is a way for you to download and sample Chapter 1 for free.
As I have written before, we really have worked hard to expand and improve the book for the Second Edition, including a brand new chapter on compensating fact witnesses. Another topic that you’ll find updated in the Second Edition is this very topic of mining metadata as we have updated our discussion and analysis to take into account several new ethics opinions issued on the topic after our first edition was published. But, if you are one of the roughly 6+billion or so folks out there who didn’t buy the First Edition, then grab the Second Edition and it will be like a First Edition as far as you know.