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Technology and Ethics—Two New Risks for Lawyers (New York Law Journal)

New York Law Journal, November 4, 2016

Technology and Ethics—Two New Risks for Lawyers

“On the other hand, an argument can be made that the use of surreptitious beacons by lawyers violates RPC 8.4, as conduct that is ‘false, deceptive or misleading.’ Although it is not the prevailing view nationally (see, for instance, ABA Formal Opinion 05-437, and the New York City Bar Association’s Committee on Professional and Judicial Ethics Opinion 2003-04), the New York State Bar Association Committee on Professional Ethics’ position that it is improper for lawyers to view metadata contained in documents received digitally (Formal Opinion 749, December 2001) would seem to be analogous. If a lawyer who receives a document may not look behind the face of the document, why should a lawyer who sends email be permitted to consciously look behind the activities of those to whom they send those emails (whether or not the recipients are lawyers)?”

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