Are You Competent To Accept A Matter That Will Require Extensive E-Discovery?


The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 addressed this question from the perspective of a lawyer’s ethical duty to handle his own client’s electronically stored information. The Committee stressed that “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 also may result in violations of the duty of confidentiality, not withstanding a lack of bad faith conduct.”

The Committee provided two checklists to assist lawyers in deciding whether to accept a matter requiring e-discovery – one when the lawyer does not have the required e-discovery competence and one in which the lawyer does:

  1. 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.
  2. Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
    • assess e-discovery needs and issues at the outset;
    • implement procedures to preserve electronically stored information, or ensure that others do so;
    • analyze and understand a client’s electronically stored information systems and storage;
    • advise the client on available options for collection and preservation of electronically stored information;
    • identify custodians of potentially relevant electronically stored information;
    • meet and confer with opposing counsel concerning an e-discovery plan;
    • perform data searches;
    • collect responsive electronically stored information in a manner that preserves its integrity; and
    • produce non-privileged electronically stored information in a recognized and appropriate manner.

Using a hypothetical fact situation, the opinion provides a good analysis of e-discovery ethical and malpractice considerations. It is readily available via Google. (last viewed on 9/15/2015)


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