How to Feed a Lawyer (and Other Irreverent Observations from the Legal Underground)

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David Giacalone

Evan, Are you saying that lawyers should be off the hook ethically whenever software designers make it easy to violate what we formerly thought of as zones of privacy? [hmm, software designers as ethical role models for professionals!] Or, are you saying that it is foolish to have an ethical rule for behavior that very few lawyers are likely to engage in?

Given the fact that some tech-savvy lawyers have already stated that NOT taking advantage of metadata secrets and clues might amount to an unethical lack of diligence, it doesn't seem all that strange to me for a bar association to specifically tell its lawyers not to engage in such practices. The fact that it is easy to do, or that you or other lawyers you know and admire have been doing such "mining," doesn't make it appropriate.


David: I think you start from a false premise when you assume that a "zone of privacy" attaches or should attach to metadata. Perhaps you think it should, but that probably just means that you and I don't agree about what metadata is. An example of metadata is the information in a Word document about who the "author" of the document is. Another example of metadata is the id3 tags in mp3 files that display in a mp3 player--"author," "title," and so on. Still another example is the information in a library card catalog, which contains metadata about the books in the library.

Where is the zone of privacy in these examples? I don't see it. Of course, it's possible that when the Florida Bar says "metadata," they are giving the word some private meaning, e.g., "metadata is information about a file that would embarrass the author of the file if it became publicly known." A workable rule about metadata cannot be fashioned based on such a flawed definition.

I also don't agree with the assumption in the first sentence of your comment that metadata was something that existed in computer files but was generally hidden until software designers came along and made it easy to see it. In the examples I just gave of metadata, the ability to store the metadata and the ability to see it took place concurrently.

John M

Software Designers make their software so that it serves the greatest benefit to the largest number of people. They aren't intentionally trying to hammer lawyers or anybody else. They have found that providing such information is more useful than it isn't.

If you don't like metadata the thing to do is to start sending letters/emails to Micrsoft's applications division asking for a "finished product" feature that will remove all metadata that doesn't relate to the formating of the document. Or a feature that turns off non formating metadata to begin with.

Mike W.

A lawyer who uses technology has the burden to ensure it does not jeopardize client confidentiality or otherwise interfere with the lawyer's duties to the client. From time to time, lawyers will accidentally disclose confidential information and the recipient ought not to take unfair advantage of such accidental disclosure, but the burden on every lawyer is to take adequate safeguards with our clients' confidences, not to pretend we can't see what's right there on our computer screens.

Imagine if the Florida Bar had applied THAT principle. What effect might that have on software developers? I can tell you that phone book ad salesmen are very accommodating to our disclosure requirements; wouldn't Adobe and Microsoft have to accommodate us as well?

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