In Formal Opinion 2015-193 the State Bar of California Standing Committee on Professional Responsibility and Conduct (“California Ethics Committee” or “Committee”) discussed three of the duties applicable to attorneys involved in e-discovery: the duty of competency, the duty to supervise, and the duty of confidentiality.
The Committee advised that the duty of competency required attorneys to assess at the beginning of the case what e-discovery issues might arise, and if e-discovery issues are likely to arise to assess their level of competency in dealing with these issues.
If the attorney lacks the necessary skills, he must acquire them or associate someone with expertise to assist.
The California Ethics Committee stated that a competent attorney or expert associated by the attorney should be able to do the following:
- initially assess e-discovery needs and issues, if any;
- implement/cause to implement appropriate ESI (Electronically Stored Information) preservation procedures;
- 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;
- 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; and
- produce responsive non-privileged ESI in a recognized and appropriate manner.
With regard to the duty to supervise, the Committee stated that the duty of competency could be satisfied through association with another lawyer or consultation with an expert. However, such association does not absolve the attorney of the duty to supervise, which extends even to the client. The attorney must retain overall responsibility and must provide appropriate instructions. In particular the attorney may not simply delegate to the client’s IT department responsibility for handling e-discovery matters.
Finally, as to the duty of confidentiality, unlike the ABA Model Rules and most states, the California rules have few exceptions to the duty, which instructs lawyers to keep the confidences and secrets of clients “inviolate.” With regard to e-discovery lawyers should be aware that entering into clawback agreements or consent orders is not sufficient protection of confidential information because clawback orders only protect against inadvertent disclosure; information that is produced as a result of inadequate procedures may not be considered to be “inadvertently” produced. Moreover, even if such information could be clawed back, the damage may be done by revelation of privileged information and trade secrets.
The opinion does not attempt to address all of the ethical issues associated with e-discovery. For example, it does not discuss when a duty to institute a litigation hold attaches or the steps lawyers should take with regard to litigation holds. However, the opinion provides excellent guidance for lawyers who may be unsure of the ethical obligations regarding e-discovery.
Full opinion available here
For more information, Nathan M. Crystal