The Risk Manager, Fall 2015
The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 addressed this question from the perspective of a lawyer’s ethical duty to handle his own client’s electronically stored information. The Committee stressed that “a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery ... even where the attorney may otherwise be highly experienced. It also may result in violations of the duty of confidentiality, not withstanding a lack of bad faith conduct.”
The Committee provided two checklists to assist lawyers in deciding whether to accept a matter requiring e-discovery – one when the lawyer does not have the required e-discovery competence and one in which the lawyer does:
- An attorney lacking the required competence for e-discovery issues has three options:
- acquire sufficient learning and skill before performance is required;
- associate with or consult technical consultants or competent counsel; or
- decline the client representation.
- Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
- assess e-discovery needs and issues at the outset;
- implement procedures to preserve electronically stored information, or ensure that others do so;
- analyze and understand a client’s electronically stored information systems and storage;
- advise the client on available options for collection and preservation of electronically stored information;
- identify custodians of potentially relevant electronically stored information;
- meet and confer with opposing counsel concerning an e-discovery plan;
- perform data searches;
- collect responsive electronically stored information in a manner that preserves its integrity; and
- produce non-privileged electronically stored information in a recognized and appropriate manner.
Using a hypothetical fact situation, the opinion provides a good analysis of e-discovery ethical and malpractice considerations. It is readily available via Google. (last viewed on 9/15/2015)