Ethical Implications of Accessing Metadata

Estate of Kennedy, et al. v. Rosenblatt, et al., 2016 N.J. Super. LEXIS 140 (App. Div. Nov. 4, 2016).

This Essex County matter addressed a conflict-of-interest issue involving attorneys who switched law firms and the electronic file that remained. In October 2013, plaintiffs Estate of Francis P. Kennedy and eight related trusts initiated a professional negligence action against defendants.  Riker, Danzig, Scherer, Hyland & Perretti, LLP (“Riker”) served as defense counsel and prepared an “Initial Case Analysis” (“the Analysis”), which was placed both in Riker’s paper file and its electronic document management system.  The Analysis was a detailed case assessment and strategy memorandum which was sent to the client.

In July 2014, several attorneys handling the Estate’s defense left Riker and joined a new firm.  Thereafter, in March 2016, plaintiffs, now at Riker, filed a second action alleging the same causes of action that had been alleged in the previous complaint and the Estate moved to disqualify Riker, asserting a conflict of interest under RPC 1.10(b)(2) – i.e., whether after the Estate’s counsel left Riker, “any lawyer remaining in the firm has information” that is protected and material to the matter.

The trial court granted the Estate’s motion, concluding the RPCs mandated this result.  Plaintiffs and Riker appealed.  The Appellate Division vacated the order disqualifying Riker, but did so conditionally.  The appeals court directed Riker to file certifications from the senior attorney and at least one IT person who assisted.  The court also required Riker to again access the Estate’s electronic file, but in the presence of the Estate’s counsel and their designated IT person.

The court stated, if the joint exercise revealed that the Riker senior attorney actually reviewed the substantive content of the Analysis, then the matter was to be remanded to the trial court for the limited purpose of reinstating the disqualification order.