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Headquarters, Department of the Army Department of the Army Pamphlet 27-50-436 September 2009 Articles Should You Scrub? Can You Mine? The Ethics of Metadata in the Army Major Brian J. Chapuran A Specialized Society: Speech Offenses in the Military Major Michael C. Friess Prosecuting an HIV-Related Crime in a Military Court-Martial: A Primer Major Derek J. Brostek Claims Report U.S. Army Claims Service The Judge Advocate General’s Excellence in Claims Award Lieutenant Colonel Cheryl E. Boone Book Reviews CLE News Current Materials of Interest Editor, Captain Ronald T. P. Alcala Assistant Editor, Major Alison M. Tulud Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly Lawyer welcomes articles from all military and civilian authors on topics of by The Judge Advocate General’s Legal Center and School, Charlottesville, interest to military lawyers. 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The Army Articles Should You Scrub? Can You Mine? The Ethics of Metadata in the Army Major Brian J. Chapuran ...................................................................................................................................................... 1 A Specialized Society: Speech Offenses in the Military Major Michael C. Friess ...................................................................................................................................................... 18 Prosecuting an HIV-Related Crime in a Military Court-Martial: A Primer Major Derek J. Brostek ........................................................................................................................................................ 29 Claims Report U.S. Army Claims Service The Judge Advocate General’s Excellence in Claims Award Lieutenant Colonel Cheryl E. Boone .................................................................................................................................... 45 Book Reviews Retribution: The Battle for Japan, 1944–45 Reviewed by Major Bailey W. Brown, III ............................................................................................................................ 48 Your Government Failed You: Breaking the Cycle of National Security Disasters Reviewed by Major Matthew J. Kemkes .............................................................................................................................. 53 CLE News ................................................................................................................................................................ 58 Current Materials of Interest ............................................................................................................................. 71 Individual Paid Subscriptions to The Army Lawyer ................................................................ Inside Back Cover SEPTEMBER 2009 • THE ARMY LAWYER • DA PAM 27-50-436 Should You Scrub? Can You Mine? The Ethics of Metadata in the Army Major Brian J. Chapuran∗ I. Introduction Metadata is information contained in an electronic document that is not immediately visible to someone viewing the document. Metadata issues can and do frequently arise in the practice of law in the Army. For example, Client A visits the legal assistance office to have a separation agreement prepared. The attorney pulls up the last agreement he drafted, saves the new agreement as a new file, and begins work. A few days later, the attorney e-mails Client A, attaching the draft separation agreement. Client A opens the document and, because metadata is present, Client A is able to find the name of Client B, for whom the previous separation agreement was drafted. In this example, the previous client was a Soldier in Client A’s unit, thus metadata led to a breach of client confidentiality. Problems involving metadata also arise in the administrative law division. For example, the chief of administrative law drafts an information paper on a sensitive topic. She sends the information paper by e-mail to the other attorneys in the administrative law division for their review and comment. The other attorneys add their comments to the document and e- mail it to the chief. The chief finalizes the information paper. The information paper is later posted on the installation web- site. Unbeknownst to the attorneys, anyone can now download the information paper and view the individual comments made during the drafting process.1 These hypothetical scenarios illustrate the dangers of metadata. Metadata can create ethical issues involving confidential information, attorney work-product, and the deliberative process privilege. Confidentiality has been described as “a fundamental aspect of the right of the effective assistance of counsel.”2 It allows the legal community to be effective in helping people solve problems. The concept of confidentiality “not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.”3 It is difficult or impossible for attorneys serving as legal assistance attorneys or trial defense counsel to fully advise their clients if they do not have all the facts from each client, including facts that are embarrassing or damaging to the client’s legal position. Clients are not likely to disclose such information if they believe the attorney may share it with other people. The duty of confidentiality provides reassurance to the client that certain information will be kept secret and will not be disclosed unless the client authorizes it or in certain circumstances when it is required by law.4 The concept of attorney work-product and the related deliberative process privilege5 are also vital to the legal profession. This concept encourages the free and open discussion of legal issues among attorneys tackling a common problem. An administrative law division cannot render a thorough and well-reasoned opinion without the attorneys in the office discussing the issue openly and honestly. Similarly, a trial counsel may find it difficult to fully assess a case or prepare for trial without the opinions of fellow trial counsel, senior trial counsel, or chief of justice regarding the strengths and weaknesses of the case. These discussions may take place orally, by e-mail, or by adding comments to drafts of documents. The law encourages this free and open discussion by protecting the thoughts and opinions of the attorneys under the doctrines of attorney work-product and deliberative process privilege. ∗ Judge Advocate, U.S. Army. Presently assigned as Command Judge Advocate, 3d Sustainment Command (Expeditionary), Fort Knox, Ky. LL.M., 2009, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, Charlottesville, Va.; J.D., 2000, Wake Forest University, N.C.; B.A., 1997, Birmingham- Southern College, Ala. Previous assignments include Chief, Operational Law, 3397th Garrison Support Unit, Chattanooga, Tenn., 2006–2008; Trial Counsel,