Much ink has been spilled about the demands of discovery in the current technological age. The storage of electronic data, the existence of metadata and the wholesale migration from printed hard copy documents to electronic documents have challenged all practitioners, particularly those trained in discovery during the era of banker’s boxes and hard copy documents. The 2006 e-discovery amendments to the Federal Rules of Civil Procedure, along with other standard-setting rules, have raised the stakes. In fact, in the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients — it may lead to professional malpractice or the imposition of sanctions on counsel. If any doubt remained, the ongoing discovery dispute in the Qualcomm v. Broadcom case, discussed below, should eliminate it.
Although there are numerous sources for lawyers’ legal duties, as a base line, Rule 1.1 of the Model Rules of Professional Conduct imposes a duty of competency on attorneys. Competent representation uses such “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” A vital component of competency is reasonable diligence in fulfilling an attorney’s duties in a case, whatever they may be. Model Rules of Prof’l Responsibility, Rule 1.3 (1996). On the flip side of Rule 1.1, the Model Code of Professional Responsibility also prohibits lawyers from handling any matters “which he knows or should know that he is not competent to handle,” and from acting without “preparation adequate in the circumstances.” Model Code of Prof’l Responsibility DR 6-101(A)(1), (2); see also Restatement (Third) of the Law Governing Lawyers � 16(2) (2000); Calif. Rules of Prof’l Conduct R. 3-110(B); N.Y. Lawyers’ Code of Prof’l Responsibility Canon 6, EC 6-1. The requirement of competency has generally been held to be a relatively low standard of ordinary or “reasonable care,” with disciplinary action limited to situations in which there is a pattern of neglect and consistent failure to carry out an attorney’s obligations. See Restatement, supra � 52, � 16 cmt d (2000); American Bar Association (ABA), Annotated Model Rules of Professional Conduct 2-3 (3d ed. 1996).
