Fowler School of Law Professor Rotunda Publishes on the Revised ABA Model Rules in the Hofstra Law Review

Professor Ronald D. Rotunda’s article “Applying the Revised ABA Model Rules in the Age of the Internet: The Problem of Metadata” was published in the Hofstra Law Review (Volume 42, No. 1, Fall 2013).

Excerpt from abstract:

“When lawyers receive a document — whether hard copy or an electronic document — that they know the adversary sent them inadvertently (for example, a fax or email mistakenly sent to an adversary lawyer instead of to co-counsel), the black letter rule in Rule 4.4 requires the lawyer to notify the other side. However, this Rule does not require the receiving lawyer to return the document unread. Whether the receiving lawyer can use that document depends, in essence, on the law of evidence. If the court decides that the document lost its privileged status (perhaps because the sending lawyer acted unreasonably), the receiving lawyer can use the document…

However, in 2012, the ABA added a new Comment to Rule 4.4, which provides that Rule 4.4 creates an obligation on the receiving lawyer ‘to promptly notify the sender’ only when ‘the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.’…

Language in the Comments to ABA Model Rule 4.4,…suggest that metadata in a digital document has an exalted position, in contrast to analogue data in a hard copy. The Report to the ABA House of Delegates did not make clear that it is exalting metadata or intending to overrule any ABA Formal Opinion. Yet, the changes in the Comments to Rule 4.4 treat metadata differently. There is no justification for treating metadata differently, as this paper explains.”

Professor Ronald D. Rotunda
is the Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University Dale E. Fowler School of Law. He teaches Professional Responsibility and Constitutional Law I and II.

See more of Professor Rotunda’s writings.