GHOSTWRITING

09-01 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON JANUARY 30, 2015

Opinion put burden on an attorney to take reasonable steps to protect metadata in transmitted documents and burden on a lawyer receiving inadvertently provided metadata to consult with the sender and abide by the sender's instructions before reviewing such. This was changed by comment 2 and 3 to Rule 4.4. Those comments indicate that a lawyer who "knows or reasonably should know" the documents where inadvertently sent electronically is required to promptly notify the sender so they may take protective measures. Whether the lawyer is required to take additional steps is a matter of law because there is a question of whether the privileged status of the document has been waived. Further, Rule 4.4 does nto address the legal duties of lawyers who receive information that they "know or reasonably should know" may have been inappropriately obtained. The determination of whether to voluntarily return or delete the unread information is a matter of professional judgment of the lawyer.