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WV Lawyer Disciplinary Board Seeks Comments on Metadata and Wholly-Owned Subsidary Law Firms

By Bob Coffield

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The Lawyer Disciplinary Board of the West Virginia State Bar is seeking public comment by February 27,2009, on two draft Legal Ethics Opinions (LEO). The two LEO's were reviewed by the Board at the October 24, 2008 meeting.

Draft L.E.O. 2009-01 What Is Metadata and Why Should Lawyers Be Cautious?
The definition of metadata used in the draft LEO is broad to include all "data behind the data" including the "author's identity, the number of revisions made and comments and redlining." Citing Rule 1.1 and 1.6, N.Y. State Bar Association Committee Op. 782 and D.C. Bar Op. 341, the proposed LEO places a duty on a lawyer to take reasonable steps to protect metadata in transmitted documents. Citing Rule 8.4(C) and N.Y. State Bar Association Committee Op. 749, the proposed LEO also places a duty on the lawyer receiving inadvertently provided metadata to consult with the sender and abide by the sender's instructions before reviewing such metadata.

Draft L.E.O. 2009-02 Wholly-Owned Subsidiary Law Firms.
The draft opinion allows a law firm to form a wholly-owned subsidiary law firm while cautioning lawyers that, in order not to deceive clients and the public, full disclosure of the relationship between the two firms is essential.

Comments must be submitted by February 27, 2009, to the Office of Disciplinary Counsel, 2008 Kanawha Boulevard East, Charleston, West Virginia 25311.