It’s not news that we are living in a totally digitized world. What is not clear is whether the ethical standards that currently exist are complete enough to guide attorneys through the current climate. Lawyers have been bound by some fundamental ethical requirements since the beginning of the profession, but technology, and particularly the eDiscovery process, has resulted in the creation of an uncoordinated series of Federal and State rules, with additional ABA Model Rules of Professional Conduct and even individual State Ethics rules along with current opinions from a variety of Courts. It is difficult for lawyers to keep current given this wide disparity. How should lawyers be prepared to respond to best represent their clients and follow the ethical requirements of their profession? Is the root of the problem the technology or the law?
The ethical obligation to protect a client and their information are a fundamental building block of legal practice. The attorney – client privilege protects certain communications between a client and his or her attorney and keeps those communications confidential. It is one the oldest recognized privileges for confidential communications. The work-product doctrine is a uniquely American rule that protects materials prepared in anticipation of litigation from discovery by opposing counsel. And the origin of the duty to preserve potential evidence arises from the common law and has generally been held to be an affirmative duty.
Technological advances occur at an ever increasing rate which results in a lag in the passage of rules that dictate how lawyers are to perform their obligations.
There have been a series of Rules and modifications to these rules with the goal of providing clarity to attorney’s actions and responsibilities which include:
Federal Rules of Civil Procedures amendments
- Amendments to state rules of civil procedure
- Changes to the ABA Model Rules of Professional Conduct
- New state ethical opinions
- State and Federal case law
Model Rules of Professional Conduct
The Model Rules are the basis for binding rules of professional conduct in every state, although California and New York have now issued rules with a different format and different specificity. Many unanswered questions remain about how to apply the Model Rules to technology, and new ones arise with each new technological “advance”.
The need for attorneys to stay abreast with the changing technology environment is set forth in Model Rule 1.1, which requires a lawyer to provide competent representation to a client. At the recommendation of the Ethics 20/20 Commission, the House of Delegates added language to Rule 1.1 stating that competence must encompass knowledge about “the benefits and risks associated with relevant technology.”
However, they let the original language stand which states, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In that context, the focus seems to be on the phrase “reasonably necessary”. With the new legal focus by the courts on reasonableness in addressing these issues, they are generally not looking for perfection in eDiscovery matters, but reasonable knowledge assumes an advanced level of understanding.
Several state opinions have extended the Model Rules to include a duty regarding competency in ediscovery. A proposed opinion of the State Bar of California released in May of 2014 holds that:
“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI.
The California draft opinion and a later Massachusetts disciplinary case go on to note that the improper handling of e-discovery “can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence
And in New York, e-discovery competence is now mandated in section 202.12(b) of the Uniform Rules for the Supreme and County Courts: which states “Where a case is reasonably likely to include electronic discovery, counsel shall, prior to the preliminary conference, confer with regard to any anticipated electronic discovery issues. Further, counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery: counsel may bring a client representative or outside expert to assist in such e-discovery discussions.”
Digital information is no longer an occasional player in the discovery process; it has become the controlling factor in discovery. The number one problem is the preservation, control and proper distribution of the digital evidence, and underlying everything are the ethical obligations that lawyers must adhere to as practice on behalf of their clients.
It is no longer enough to know the law (statutes, rules and case law) and the technology (ESI, storage formats and exchange protocols). Now every practitioner must understand the ethical obligations that bridge technology and the law.
Case law and legal rules form the theoretical basis for understanding ethical obligations. But this is likely not enough. Problems that are highlighted by new technology will not be solved by technology. Ethics are legal obligations and they can only be understood and applied by all attorneys if there is a truly uniform education regarding the ethical obligations of technology.
The solution to the ethical dilemma of the intersection of law and technology will only occur when there is equivalent education about BOTH subjects.