Electronic documents contain background data, or “metadata”, that may convey information a practitioner did not intend for another party to have.
By using electronic communications, a solicitor assumes an obligation to learn the basic features and risks of the system so that their client’s interests are protected.1
Sharing a document containing confidential metadata with an opposing party may breach a solicitor’s duty of competence and confidentiality.2
Deliberately examining confidential metadata sent by the other side may also breach the Australian Solicitor’s Conduct Rules 2012 (‘ASCR’) and our duty to the court.
Most solicitors are aware of metadata risks when dealing with Word documents during negotiations, but prior version and background information are stored in many types of electronic documents, including spreadsheets, photos, PDF and email.
Considerations that practitioners should take into account on this issue can be found in our note.
David Bowles is Special Counsel with the QLS Ethics and Practice Centre.
1 Queensland Law Society, Australian Solicitor’s Conduct Rules (at 1 June 2012), r 4.1.3 (‘ASCR’).
2 Ibid r 9.