An Attorney’s Lack of Competence in E-Discovery Issues can Result in Ethical Violations

Lack of Competence in E-Discovery Issues can Result in Ethical ViolationsA recent ethics opinion from the California State Bar Association, Formal Opinion Interim No. 11-0004, begins as follows: “An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law.” Gulp! In other words, the law bans luddites, or those opposed to, or slow to adopt industrialization, automation, computerization or new technologies. Unfortunately, that description of a “luddite” includes a great many attorneys practicing in New Jersey and other States.

The issue in Ethics Opinion No. 11-0004 is stated as follows: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” In tackling that issue, the ethics board first focused on litigation and cases related to litigation, which the committee identified as those types of cases which may involve electronically stored information:

Not every litigated case ultimately involves e-discovery; however, in today’s technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness in the matter has used email or other electronic communications, stores information digitally, and/or has other forms of ESI related to the dispute. … Electronic document creation and/or storage and electronic communications have become standard practice in modern life.

Thus, the scope of the ethical obligation imposed by the opinion is broad since many cases, though not yet in litigation, are “related to” litigation, or may result in litigation. The duty to understand and become competent in e-discovery is not limited to cases that involve electronically stored information, but extends to any case that potentially involves ESI which could be almost every case.

The ethics board then specifically identified the ethics violations that my result when an attorney, unfamiliar with electronically stored information, handles a case involving ESI:

Attorneys who handle litigation may not simply ignore the potential impact of evidentiary information existing in electronic form. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, … even where the attorney may otherwise be highly experienced. It may also result in violations of the duty of confidentiality, the duty not to suppress evidence, and/or the duty of candor to the Court, notwithstanding a lack of bad faith conduct.

Many basic litigation cases now involve e-discovery issues. Therefore, litigators have an ethical obligation to “evolve” and gain the technical knowledge necessary to competently handle electronically stored information.

Ethics Opinion No. 11-0004 is annexed here – Formal Opinion Interim No. 11-0004

For additional information concerning NJ elder law: