ETHICS, PROFESSIONALIM AND ELECTRONIC DISCOVERY
- Introduction.
As previous chapters of this book have shown, “technology has irrevocably changed and continues to alter the practice of law in fundamental ways.”[i] As technology evolves, lawyers are confronted with new challenges pertaining to the preservation of data, the proper maintenance of privileged and confidential material and the sometimes daunting learning curve that accompanies new technological developments. These developments present ethical challenges that require a reexamination of the duty of competence and a more careful view of the litigator’s responsibility with respect to confidential information and metadata that is produced electronically. This chapter will briefly examine the parameters of the duty of competence in the e-discovery context and briefly outline the rules that delineate the proper and ethical management of confidential information.
- The 2012 Amendments to the ABA Model Rules.
In August of 012, the ABA Commission on Ethics 20/20 (the “20/20 Commission”) recommended, and the ABA House of Delegates adopted, updates to the ABA Model Rules of Professional Responsibility “to reflect the realities of the digital age.”[ii] These amendment reflect the inevitable reality that lawyers cannot rely entirely on others to understand technology that is utilized in the e-discovery process. Instead, lawyers practicing in the digital age have an ethical obligation to understand those aspects of technology that are relevant to the matters they handle and which are designed to protect confidential information.[iii]
- The Duty of Competence in the Digital Age.
The most significant change to the ABA Rules for the e-discovery attorney is found in the comments to Rule 1.1, pertaining to competence. While the Rule itself remains unchanged, the new version of Comment 8 states s follows”
To maintain the requisite knowledge and skill a lawyer should keep abreast of changes to the law and its practice, including the benefits and risks associated with relevant technology, engaging in continuing study and education and comply with all continuing legal requirements to which a lawyer is subject.[iv]
Comment 8 was made explicit because of the rapid pace of technological change and the benefits and risks of certain technology. Recognizing that an attorney has a “general ethical duty to remain competent in a digital aid, the 20/20 Commission explicitly acknowledged that electronic discovery fits within the broader of “relevant technology” contemplated by Rule 1.8:[v]
Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. For example, lawyers need to know how to make and respond to electronic discovery requests and to advise their clients regarding electronic discovery obligations. … These developments highlight the importance of keeping abreast of change in relevant technology in order to ensure that clients receive competent and efficient legal services.[vi]
While the comments to Rule 1.1 do not define the scope of “relevant technology” that falls under the purview of competence, counsel must, at minimum, understand the client’s information management systems, the tools used to preserve electronic data in advance of litigation, along with the software and hardware programs that are used to create, store, maintain, collect, process, review and process electronically stored information, including back up systems, search tools, predictive coding algorithms and, if necessary, forensic tools used to locate inaccessible, corrupt or lost data. Counsel must remain current on technologies that create and process data as well as related tools that are used to preserve, process, review, search and produce such data.[vii] While the duty of competence requires lawyers to have a “firm grasp” on these technologies, the 20/@0 Commission also acknowledged that some matters “may require the use of technology that is beyond the scope of the lawyer’s expertise,” thus requiring the assistance of non-lawyers with more proficiency with certain technologies.[viii] Accordingly, counsel can satisfy the duty of competence by taking diligent and reasonable steps to understand the technology while using outside consultants when the technology requires special expertise. The lawyer is not required to possess special training in these technologies to be considered competent.[ix]
- The Duty of Confidentiality.
The most significant substantive amendment to the ABA Model Rules addresses the duty of confidentiality. Recognizing the differences between traditional lawyer client communications, which occurred by regular mail or facsimile, the drafters acknowledged that in contemporary communications, lawyers and clients routinely exchange computer information from many different sources that are sometimes accessible from many locations. This has raised “new concerns” about “data security and lawyers’ ethical obligations to protect client confidences.”[x] Rule 1.6 has now been amended to “make clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent disclosure, unauthorized disclosure and unauthorized access, regardless of the medium used.”[xi] To underscore the importance of this obligation, Rule 1.6 has now been amended to include specific language requiing a lawyer to make “reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to information related to the representation of a client.”[xii]
[i][i] ABA Commission on Ethics, Resolution 105A Report at 3 (August 2012).
[ii] ABA Commission on Ethics, Resolution 105A Report at 3 (“20/20 Report: Introduction and Overview”) (August 2012).
[iii] Kenney, The Evolving Ethics of E-Discovery: Raising the Bar for Counsel at 2 (Sidley Austin LLP 2013).
[iv] ABA Model Rules of Prof’l Conduct R. 1.1, cmt. 8.
[v] 20/20 Report: Introduction and Overview, n.4, at p. 8.
[vi] Id. At p. 4.
[vii] Kenney, The Evolving Ethics of E-Discovery: Raising the Bar for Counsel at 4 (Sidley Austin LLP 2013).
[viii] 20/20 Report: Introduction and Overview, n.4, at p. 5
[ix] 20/20 Report: Introduction and Overview, n.4, at p. 4.
[x] Id. at p. 8.
[xi] Id. at p. 8.
[xii] ABA Model Rules of Prof’l Conduct R. 1.6.