Recent developments in e-discovery put more burden on counsel and implicate the rules of ethics for lawyers. The explosion of electronic files in discovery has caused courts to become more active in affirming and enforcing the duties of counsel in four areas: competence, confidentiality, candor toward the tribunal and fairness.
Competence: The ABA Model Rule of Professional Conduct 1.1 requires that lawyers provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. “Reasonable” or “reasonably,” when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.
Lawyers spent many years developing and perfecting techniques to handle paper discovery. The new world of electronic records requires new skills and knowledge. Collecting, searching and reviewing email, electronic documents, database records and other electronic data present new and often complicated issues for the lawyer. At a minimum, counsel needs to be able to acknowledge and understand their skills and understanding of the technical issues, inquire about clients’ skills and limits and know when outside help is needed.
Some examples of what can happen when counsel are ill-informed include Swofford v. Eslinger, a 2009 Middle District of Florida case in which inside counsel failed to issue a litigation hold or other meaningful steps to preserve. In Green v. McCLendon, a 2009 case out of the Southern District of New York, counsel discussed duty to preserve with the client but failed to discuss what types of information may be relevant or instruct the client to institute a litigation hold. The defendant thereafter reformatted his hard drive. The court awarded costs against client and against counsel. In Bray & Gillespie v. Lexington Insurance, a 2009 case out of the Middle District of Florida, the court sanctioned the law firm and two partners for misleading the court and the opposing party on the availability of electronic records in native format with metadata. Some of the plaintiff’s claims were later dismissed as an additional sanction.
Confidentiality: ABA Model Rule 1.6 says that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Counsel must act to safeguard client information from inadvertent or unauthorized disclosure, including privileged communications and work product.
Given the volume of electronic data, especially client email, it can be difficult to protect privileged information from disclosure. Counsel must understand and consider protective orders and new techniques such as clawback agreements or quick peek arrangements. Effective review tools, proper review procedures with quality controls and process documentation are often necessary.