Ethical issues in e-discovery arise due to the unique challenges and the complex nature of electronic data. The ethical challenges presented demand careful consideration and require lawyers to remain competent in emerging technology and the implications on e-discovery.

Under the American Bar Association’s Model Rules of Professional Conduct, attorneys must provide competent representation to a client. Model Rule 1.1 provides that competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In 2012, the ABA amended this rule to highlight that an attorney’s ethical duty of competence includes a reasonable understanding of the benefits and risks associated with relevant technology. Notably, Comment 8 to Model Rule 1.1 emphasizes the need for lawyers to stay abreast of changes in the law and its practice, particularly those pertaining to technology. The comment clarifies that Rule 1.1 should be interpreted to mean that attorneys must maintain technological competence. Although the amendment did not introduce new obligations, it serves as a reminder to lawyers that they should remain aware of emerging technology as part of their ethical responsibility to remain competent.

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