Ride the Lightning

California Requires Lawyers To Be Competent With E-Discovery

August 27, 2015

I am remiss in addressing this topic late, but wanted to make sure I covered it. California became the first state to specifically require a lawyer to be competent in e-discovery when the California State Bar's Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193 on June 30th.

The digest for the opinion lays out the essence of the document:

"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. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality."

As anyone who lectures on e-discovery knows, the majority of attorneys still lack a baseline understanding of e-discovery including the technology involved – and it is critical that there be some understanding of the technology.

I hope that other states will look at California's opinion and perhaps come up with similar ethical opinions. Frankly, even those attorneys who do not litigate need to have a basic understanding of e-discovery because virtually all attorneys are involved in the creation and/or management of data which may become subject to discovery.

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