Do Lawyers Have An Ethical Duty To Be Competent in E-Discovery?

It was big news in 2012 when the American Bar Association amended the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent in technology. Specifically, the ABA amended the comment to Model Rule 1.1, governing lawyer competence, to say that, in addition to keeping abreast of changes in the law and its practice, a lawyer should keep abreast of “the benefits and risks associated with relevant technology.”

But what exactly does that mean and how far does that duty extend? Does it extend to e-discovery, an area of law practice that many lawyers choose to avoid or ignore? More specifically, do lawyers have an affirmative ethical responsibility to be knowledgeable about e-discovery and competent in its practice?

In California, that could soon be the case. The State Bar of California has published a proposed ethics opinion that would require attorneys who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. The bar is accepting public comments on the proposed opinion until April 9, 2015.

So far, it is only a proposed opinion. Even if it is adopted, it is only advisory and not binding on lawyers, courts or regulatory bodies in California. That said, there is no denying that this proposed opinion is a harbinger, just as it can no longer be denied that the practice of law requires some degree of competence in technology. In the forum of litigation, competence in technology necessarily requires competence in e-discovery. It is only a matter of time before ethics bodies across the nation formally recognize this.

I have written a more detailed analysis of the proposed opinion for the Catalyst E-Discovery Search Blog: California Considers Ethical Duty To Be Competent in E-Discovery.

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  • Many attorneys still consider e-discovery to be a niche area of law practice, one they would prefer to stay well away from. But do lawyers have an ethical responsibility to be knowledgeable about e-discovery and competent in its practice? In California, the answer could soon be, “Yes.”