California Finalizes Ethics Opinion Requiring Competence in E-Discovery

shutterstock_107714909Last February, we reported here on a proposed ethics opinion from the State Bar of California that would require lawyers who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. At that point, the bar was accepting public comments on the proposed opinion in advance of issuing a final opinion.

Now, that opinion has been finalized and was issued on June 30 as Formal Opinion No. 2015-193. The final opinion largely mirrors the proposed opinion, with only minimal changes. As before, the opinion says that attorneys have a duty to maintain the skills necessary to integrate legal rules and procedures with “ever-changing technology.” In support of that statement, it cites 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.”

[For comparison purposes, I created a redlined version showing the changes from the proposed version to the final version. To see it, click here.]

That duty of technology competence extends to e-discovery, the opinion concludes, and because e-discovery can come up in almost every litigation matter, attorneys should have at least a baseline understanding of it.

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 an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist.

As was true in the proposed opinion, this formal opinion lists the basic e-discovery skills a lawyer should have to be considered competent in e-discovery. The wording and order of this list changed slightly from the proposed opinion.

  • Initially assess e-discovery needs and issues, if any.
  • Implement/cause to implement appropriate ESI preservation procedures. (This is a slight change from the proposed opinion, which said:  “Implement/cause to implement appropriate preservation procedures for electronically stored information (ESI).”)
  • Analyze and understand a client’s ESI systems and storage.
  • Advise the client on available options for collection and preservation of ESI.
  • Identify custodians of potentially relevant ESI. (The word “potentially” was not in the proposed opinion.)
  • Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.
  • Perform data searches.
  • Collect responsive ESI in a manner that preserves the integrity of that ESI.
  • Produce responsive non-privileged ESI in a recognized and appropriate manner. (The word “non-privileged” was not in the proposed opinion.)

As in the proposed opinion, the formal opinion advises that an attorney can meet the duty of e-discovery competence by associating or consulting with someone else who has the necessary expertise. That could be an outside attorney, a subordinate attorney, an outside vendor, or even the client. If this is done, the lead attorney retains the duty to supervise the expert’s work.

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 attorney should issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI.

Also unchanged is the opinion’s conclusion, which contains its strongest admonition to any lawyer who handles litigation of any kind.

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.

Note that warning: A lack of technological knowledge could render an attorney “ethically incompetent to handle certain litigation matters.”

When I wrote about the proposed opinion last February, I called it a harbinger, writing, “It is only a matter of time before ethics bodies across the nation call for competence in e-discovery.” Now that this final version is out, we might call it not only a harbinger, but also a wake-up call.

mm

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.