The State Bar of California Standing Committee on Professional Responsibility and Conduct issued Formal Opinion No. 2015-193 which addresses a number of issues regarding an attorney’s ethical duties in the handling of discovery of electronically stored information (ESI.) The Committee had issued two draft opinions in 2014 and after a public comment period, the final version was issued on June 30, 2015. The final version will likely be widely-cited and clients and counsel should likewise be aware of the opinion and its significance.
The digest of the Opinion, which is advisory in nature and not binding on any court in California or any member of the California Bar, highlights the challenges lawyers face in a rapidly changing technical environment to become and stay competent:
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including 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 matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI.
The Opinion notes that an attorney handling e-discovery matters, either by themselves or in association with competent co-counsel or expert consultants, should be able to:
- Initially assess e-discovery needs and issues, if any;
- Implement/cause to implement appropriate ESI 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.
For those lawyers who are skilled in the nuances of eDiscovery, the above list, while challenging, is not problematic. For an attorney who is not experienced in the legal and technical aspects of eDiscovery, the challenge is daunting. To advise a client regarding options for collecting and preserving ESI as well as protecting client confidences and privileges, lawyers need to understand the technical aspects of the ESI systems at issue and the tools available for each system. They also need to understand how a tool selection will impact the ability to produce responsive ESI in the appropriate manner.
This Opinion, like the thrust of much of the current guidance regarding competence in eDiscovery, informs members of the bar of their ethical obligations to understand, at a minimum, the legal issues regarding electronic discovery. While the Opinion is helpful in raising awareness of the numerous “legal rules and procedures” regarding eDiscovery, it is important to remember that lawyers also need to understand the specifics of the technology involved. If an attorney is not familiar with the benefits and risks associated with the relevant technology and cannot acquire sufficient learning and skill before performance is required in the representation, the attorney must either decline the representation or associate with or consult competent counsel or technical experts who are familiar with the technology. Should the attorney choose to associate with others, the attorney must understand that they retain an ongoing ethical obligation to oversee the work that is done by the counsel or expert and that the attorney must make certain that the team (including non-lawyers) is compliant with all relevant ethical obligations.
The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2015-193 is available at: