On June 30, 2015, the State Bar of California Standing Committee on Professional Responsibility and Conduct released Formal Opinion No. 2015-193 addressing an attorney’s ethical duties in the handling of the discovery of electronically stored information (“ESI”). ESI is information created, communicated, and stored on either computer hardware or software (i.e., emails, Word documents, videos, etc.). Given ESI’s pervasive presence in litigated matters, it is critical that attorneys understand electronic discovery so as to avoid potential ethical violations and exposure to unnecessary disputes.
The committee’s opinion focused its analysis around a detailed hypothetical that demonstrated the unfortunate, but relatable, missteps taken by an attorney that was familiar with discovery, but unfamiliar with electronic discovery. Consequently, and among other things, the attorney’s actions exposed him to various ethical violations. The committee specifically addressed Rules 3-110 and 3-100, the duties of competence and confidentiality, respectively. (Note: California has not adopted the ABA Model Rules of Professional Conduct; however, 3-110 and 3-100 generally echo the duties described in ABA Rules 1.1 and 1.6, versions of which of been adopted in all of the other states.)
With respect to the duty of competence, the committee broadly interpreted the existing language of the rule to include knowledge of electronic discovery. Depending on the case, the duty of competence may require a practitioner with a high level of technical knowledge and ability. If, however, the attorney lacks the requisite skillset, he has three available 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. Moreover, the committee counseled that if an attorney chooses the second option, the attorney is always responsible for and obligated to supervise outside counsel and consultants.
Additionally, an attorney has a fundamental duty to protect confidential communications between the attorney and client. Thus, an attorney’s failure to diligently monitor the production of ESI could result in both an ethical violation and a waiver of attorney-client privilege. An attorney dealing with electronic discovery must take action to review a client’s network, instruct and supervise the client’s disclosure, develop a narrow list of acceptable search terms, and review the retrieved data before it is ultimately disclosed.