California Considers Ethical Duty To Be Competent in E-Discovery

Many attorneys still consider e-discovery to be a niche area of law practice, one they would prefer to stay well away from. But do lawyers have an ethical responsibility to be knowledgeable about e-discovery and competent in its practice? In California, the answer could soon be, “Yes.”

A proposed ethics opinion of the State Bar of California (Proposed Formal Opinion Interim No. 11-0004) would require attorneys who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. The bar is accepting public comments on the proposed opinion until April 9, 2015.

The proposed ruling is based on the ethical duties of an attorney to be competent and to protect client confidentiality.

Duty of Competence

With regard to competence, the opinion suggests that attorneys have a duty to maintain the skills necessary to integrate legal rules and procedures with “ever-changing technology.” The opinion references the American Bar Association’s 2012 amendment to the Model Rules that discussed the duty of lawyers to keep abreast of changes in the law, “including the benefits and risks associated with relevant technology.”

While not every litigated case involves e-discovery, the opinion says, “in today’s technological world, almost every litigation matter potentially does.” That means that attorneys must have at least a baseline understanding of e-discovery.

We start with the premise that “competent” handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case. The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. If e-discovery will probably be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation.

If, in making that assessment, the attorney decides that he or she lacks the requisite skills and resources, that does not preclude the attorney from taking the case, the opinion says. At that point, however, the attorney must either try to acquire sufficient learning and skill or associate or consult with someone who has the expertise. That someone does not need to be another attorney, but could be a consultant with expertise in e-discovery.

The opinion goes on to describe the specific aspects of e-discovery that the attorney should be able to handle, either alone or through association with someone else. They are:

  • Initially assess e-discovery needs and issues, if any.
  • Implement/cause to implement appropriate preservation procedures for electronically stored information (ESI).
  • Analyze and understand a client’s ESI systems and storage.
  • Identify custodians of relevant ESI.
  • Perform data searches.
  • Collect responsive ESI in a manner that preserves the integrity of that ESI.
  • Advise the client on available options for collection and preservation of ESI.
  • Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.
  • Produce responsive ESI in a recognized and appropriate manner.

Duty to Supervise

Although the opinion allows attorneys to work with third parties who have e-discovery expertise, it nonetheless emphasizes that attorneys retain the obligation to supervise the work of those third parties.

According to the opinion, an attorney can meet the duty of competence through association with an outside attorney, an outside vendor, a subordinate attorney or even the client, provided they have the necessary expertise. But in any case, the attorney who is lead counsel in the litigation retains the duty to supervise.

The attorney must do so by remaining regularly engaged in the expert’s work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand.

The lead attorney should issue appropriate instructions and guidance and conduct appropriate tests until satisfied that he or she is meeting these ethical obligations prior to releasing ESI, the opinion says.

Duty of Confidentiality

A concern in discovery of any kind is to protect confidential attorney-client communications and to avoid the inadvertent disclosure of privileged information. For that reason, a lawyer who lacks skill in e-discovery is also at risk of breaching the ethical duty to maintain confidentiality, the opinion cautions.

[A]n attorney has a duty to assert the attorney-client privilege to protect confidential communications between the attorney and client. … In civil discovery, the attorney-client privilege will protect confidential communications between the attorney and client in cases of inadvertent disclosure only if the attorney and client act reasonably to protect that privilege. … A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege.

The proposed opinion lays out a hypothetical in which an attorney defending a client in litigation engages in a series of e-discovery missteps. For one, he allows opposing counsel’s vendor to search his client’s network, believing that his client will be protected by a clawback agreement between the parties. Not surprisingly, the vendor retrieves all sorts of both privileged and highly proprietary information, and also discovers that the client has been routinely deleting potentially responsive information.

In our hypothetical, because of the actions taken by Attorney prior to consulting with any e-discovery expert, Client’s privileged information has been disclosed. Due to Attorney’s actions, Chief Competitor can argue that such disclosures were not “inadvertent” and that any privileges were waived. Further, non-privileged, but highly confidential proprietary information about Client’s upcoming revolutionary new product has been released into the hands of Chief Competitor.

All of this happened because of the attorney’s lack of competence in e-discovery, the opinion notes.

While the law does not require perfection by attorneys in acting to protect privileged or confidential information, it requires the exercise of some level of reasonable care. … Here, Attorney took only minimal steps to protect Client’s ESI, or to instruct/supervise Client in the gathering and production of that ESI, and instead released everything without prior review, inappropriately relying on a clawback agreement. Client’s secrets are now in Plaintiff’s hands, and further, Plaintiff may claim that Client has waived the attorney-client privilege. Client has been exposed to that potential dispute as the direct result of Attorney’s actions.

A Legal Ethics Harbinger

The opinion concludes with this:

Electronic document creation and/or storage, and electronic communications, have become commonplace in modern life, and discovery of ESI is now a frequent part of almost any litigated matter. Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance under rule 3-110(C), even where the attorney may otherwise be highly experienced. It also may result in violations of the duty of confidentiality, notwithstanding a lack of bad faith conduct.

So far, this is only a proposed opinion. This is the second draft of this opinion, after an earlier version was put out for comment last year. Once this comment period closes in April, the opinion could change again.

Even so, there is no denying that this proposed opinion is a harbinger. There is growing recognition across the country that the practice of law requires some degree of competence in technology. In the forum of litigation, competence in technology necessarily equates with competence in e-discovery. It is only a matter of time before ethics bodies across the nation call for competence in e-discovery.

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About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors Law.com's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.