Given the proliferation of smartphones, the emergence of cloud computing, and the exponential increase in the amount of data the average person generates and stores on a daily basis, the days of lawyers ignoring issues relating to electronically stored information, or ESI, are firmly in the past.
Indeed, changes to court rules have left practitioners with no choice but to come to grips with this changed reality, at least in theory. Unfortunately, theory only goes so far; even today, it is not uncommon to find practitioners who are not altogether comfortable with ESI-related issues, and others who will avoid addressing ESI-related issues as long as possible.
While the Florida Bar has issued ethical opinions relating to ESI and technology-related aspects of practice—e.g., a lawyer’s use of cloud computing (Opinion 12-3, Jan. 25, 2013), use of a lawyer’s e-filing login credentials by a nonlawyer (Opinion 12-2, June 22, 2012), a lawyer’s use of devices containing a storage medium (Opinion 10-2, Sept. 24, 2010), a lawyer’s use of metadata in documents electronically transmitted (Opinion 6-2, Sept. 15, 2006), etc.—the bar has yet to issue an opinion that squarely addresses issues of competence, candor and fairness as it relates to the ESI-related issues likely to arise in the course of discovery.
Now at least one other state ethics committee has considered the ethical ramifications of practicing without a sufficient knowledge of ESI-related issues. On Feb. 28, the California Standing Committee on Professional Responsibility and Conduct approved Formal Opinion Interim No. 11-0004 addressing an attorney’s ethical duties relating to the handling of ESI.
In setting the stage for the issues addressed in the opinion, the California committee echoed the ESI reality that exists today: “Not every litigated case ultimately involves e-discovery. However, in today’s technological world, almost every litigation matter potentially does. The changes are significant that a party or a witness in the matter has used email or other electronic communications, stores information digitally, and/or has other forms of ESI related to the dispute.”
The opinion, which is written in the form of a hypothetical, details a situation where:
• The attorney misapprehends the scope and application of a clawback agreement—an agreement between counsel that permits a producing party to demand the return of privileged materials inadvertently produced;
• The attorney prepares a list of keywords for a search of ESI without consulting with the client or a discovery liaison;
• The attorney represents to the court that e-discovery was completed in compliance with the court’s order without actually reviewing the data resulting from the keyword search; and
• When the attorney finally does engage an e-discovery expert, the expert finds that the attorney’s client has failed to preserve potentially responsive ESI.
The opinion then proceeds to relate each of these failures to California Bar Rules, including the duty of competence, the duty of confidentiality, candor toward the tribunal, and fairness to opposing party and counsel.
Attorneys who are not sufficiently knowledgeable about ESI and e-discovery issues have three options: acquire sufficient knowledge before taking on a case involving ESI and e-discovery issues, associate with competent counsel or engage a technical consultant when taking on such a representation or decline the representation.
The opinion was published, and the California bar invited comments until June 24. The comments vary considerably.
The Orange County Bar Association “generally agree[d] with the conclusion of the opinion that attorneys must recognize that a familiarity with electronic discovery procedure is part of their duty of competence during the course of discovery in litigation.” However, the association believes the opinion “focuses on generally negligent acts of the attorney rather than his failure to act competently.” Ultimately, the group recommended omitting the discussion of negligence and the duty of candor to the court and related facts, and confine the focus to the duty of competence.
The Los Angeles County Bar Association went further with its comments, suggesting the opinion either be withdrawn or, at the least, substantially revised. The LACBA even suggested that the “draft opinion’s discussion of lawyer competence conflates concepts of ordinary negligence with competence.”
On the other hand, the San Diego County Bar Association submitted a letter supporting the proposal “without substantive comment.”
The opinion is not final, is still subject to revision or withdrawal and does not directly impact Florida lawyers (or for that matter any lawyers outside of California who are not involved in cases in California). Nonetheless, lawyers in any jurisdiction would do well to read the opinion.
It is not uncommon to find Florida’s Professional Ethics Committee citing to other jurisdiction’s ethics opinions, as they did recently when considering the issues relating to cloud computing, and it stands to reason that they might cite to the opinion at some point in the future. Even if Florida’s Professional Ethics Committee never makes reference to the opinion, the criticism of the opinion—suggesting that it conflates ethics and negligence—highlights that the conduct detailed in the opinion may give rise to tort liability.
If some of the ESI-related concepts or terms addressed in the California opinion are new or unfamiliar, then perhaps it is time to consider continuing legal education relating to ESI issues. With the increasing frequency with which ESI issues arise, practitioners would do well to get out in front of these issues now.