Professional Responsibility and E-Discovery

The American Bar Association’s Model Rule of Professional Responsibility 1.1 states: “a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Additionally, the ABA revised the rule in 2012, and added comment 8 concerning maintaining competence and explaining that a lawyer should keep up with changes in the law, including the benefits and risks associated with relevant technology. Now, majority of the States have enacted rules requiring Lawyers to become familiar with technology that surrounds their practices. While this may sound easy to those of us who have grown up around technology, the rapid evolution of technology can create new problems. For example, client sensitive information may be inadvertently disclosed while using cloud technology or other data security platforms.[1]

 E-Discovery is also gaining popularity. The process was designed to cut costs and time during discovery by producing and collecting documents electronically. The technology uses key words to sort through massive amounts of documents; however, the documents often contain more sensitive information than a hardcopy would such as time-date stamps and author/recipient information. Additionally, increasing volumes of electronically stored information (ESI), evolving e‐discovery case law, the automation of legal processes, changing ESI protocols and harsher judicial sanctions have created a need for e‐discovery specialists. Some e-discovery attorneys work for corporate clients, while others have created specialty roles within the corporation or agency.[2]

Although it is clear that attorneys must remain up to date with current technology that impacts their practice the field of law is often slow to adapt changes, and it may be unclear to some lawyers how they will maintain this ethical duty. An opinion by the State Bar of California addressed an attorney’s ethical duties in the handling of discovery of electronically stored information, and states that when an attorney lacks the required competence for e-discovery issues, the attorney has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. [3]

Additionally, the Washington State Bar Association issued an Opinion in 2012, which outlined a lawyer’s obligations when storing confidential data online which is managed by third party vendors. The WSBA stated “It is impossible to give specific guidelines as to what security measures should be in place with a third-party service provider of online data storage in order to provide adequate protection of client material, because the technology is changing too rapidly, and any advice would be too quickly out of dat.” However, the WSBA also states the best practices for a lawyer who does not possess advanced technological knowledge which, among others, include: evaluating the providers practice’s, reputation, and history; familiarization with the potential risks of online data storage, and confirming provisions in the agreements that give the lawyer prompt notice of any nonauthorized access to the lawyer’s stored data.[4]

One Scholar predicts the e-discovery will be old technology by the year 2020. He bases this theory on Moore’s law, (the theory of doubling computing speeds every two years). Blair Janis also contends artificial intelligence will play a huge role in legal services.[5] It is hard to say which technology will impact a specific attorney though, because attorneys vary widely in the services they offer. It is easier to say, that whichever technology is relevant to an attorney’s field, there exists a duty upon that attorney to be aware of it and understand the risks involved.

---

[1] Sarah Andropoulos, Most States Now Require Tech Competence for Lawyers. What Does That Mean for You?, Legal Marketing and Technology Blog, (Feb. 9, 2017), https://onward.justia.com/2017/02/09/states-now-require-tech-competence-lawyers-mean/

[2] Sally A. Kane, Breaking into E-Discovery, Law Practice Today (Jan. 2012), https://www.americanbar.org/content/dam/aba/publications/law_practice_today/breaking-into-e-discovery.authcheckdam.pdf

[3] State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 (2015).

[4] WSBA Advisory Opinion No. 2215C

[5]  Blair Janis, How Technology Is Changing the Practice of Law, GPSolo Magazine Vol. 31 No. 3(May/June 2014), https://www.americanbar.org/publications/gp_solo/2014/may_june/how_technology_changing_practice_law.html