As competition among service providers and law firms heats up, cooperation remains the key to a successful e-discovery engagement. That is why it is important to always be clear about roles and responsibilities between vendor and law firm in this challenging environment.
The first shot over the bow was the 2012 advisory opinion by the Washington, D.C., Bar Association and the District of Columbia Court of Appeals that cautioned service providers against performing legal work and marketing practices, and lawyers delegating responsibilities to non-lawyers. The four major themes in this opinion were:
1. Service providers cannot make the final selection of contract attorneys to staff a project or provide legal supervision over the contract attorneys.
2. Staffing and supervision must be handled by a member of the D.C. Bar associated with the case.
3. A vendor's role should be limited to the administrative aspects of the review (i.e., finding and interviewing reviewers, handling payroll and taxes, making sure the reviewers show up to work, etc.).
4. Vendors cannot use broad-based statements in marketing materials (i.e., that the company is an "end-to-end" vendor or legal expertise) without including a UPL (unauthorized practice of law) disclaimer.
5. Attorneys who are members of the D.C. Bar should direct and supervise all review work by licensed outside attorneys.
This advisory opinion was an overreaction to a situation that has not yet occurred. Based on my 12 years providing e-discovery consulting and 15 as a first-chair trial attorney, I have never seen or heard of any instance where the vendor overstepped the boundary into the UPL.
The only act vendors are guilty of is providing good practical advice to lawyers as they navigate the e-discovery technology maze and make important strategic decisions in this high risk emerging area. Lawyers have always engaged experts when needed to help with the challenges they face and e-discovery is no exception.
Conversely, we are also seeing law firms expanding beyond their core competency of providing legal services to include technical services like collection, data processing, and hosting. There are ethical issues involved in a law firm providing e-discovery services ABA Model Rule of Professional Responsibility 5.7 "When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems."
From my observation, most law firms have likewise done an excellent job providing e-discovery services traditionally provided by vendors. Many of the people hired to perform e-discovery services for a law firm came from experienced vendors.
That said, bringing up these thorny issues for discussion is a healthy exercise and a natural consequence of a rapidly expanding and maturing market. Bar associations play an important role here. Most of these concerns can be readily addressed with appropriate contract language, full disclosures and solid best practice guidelines. Service contracts should always define the roles and responsibilities for a project between vendor and law firm.
Admittedly, roles and responsibilities can sometimes get a little muddled as we work under strict time constraints on fast-track cases with complex legal and technical issues. The Sedona Conference's Cooperation Proclamation to change the culture of discovery from adversarial conduct to cooperation requires cooperation not only among the parties; but the vendors too. Vendor and law firm participation at the Sedona Conference is a classic example of this cooperation.
As the challenges of discovery increase, both vendors and law firms realize we are in it together. The costs associated with pre-trial discovery has become a serious burden to both the American judicial system and litigants as well.
Bar associations should be careful not to drive a wedge between law firms and e-discovery service providers and avoid the temptation to be alarmist in an area that has to this point seen nothing but exceptional professional cooperation at least between lawyers and vendors!
San Francisco-based attorney Albert Barsocchini is the discovery counsel and director of strategic consulting at NightOwl Discovery.