The Ethical Duty to Be Competent in Technology and e-Discovery

Given recent trends, this opinion is most likely a foreshadowing of what will routinely be expected of lawyers in the not-so-distant future. But what does it mean for lawyers and, in particular, for corporate counsel?

The Genesis of the Duty

In 2009, then-American Bar Association president Carolyn B. Lamm appointed the Commission on Ethics 20/20. Its mandate was to perform a thorough review of the ABA Model Rules of Professional Conduct in the context of advances in technology and developments in global legal practice. After three years of work, the 20/20 Commission, in 2012, came out with a number of recommendations for amending the model rules. One seemed so minor that it received little attention at the time. It was to amend the comment to the rule on competence to make clear that a lawyer must be competent not only in the law and its practice, but also in technology.

The proposed change was approved by the ABA House of Delegates in August 2012. The actual rule ' Model Rule 1.1 ' remained unchanged. It says:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

The change was to Comment 8 to the rule, which is titled “Maintaining Competence.” The amendment added a nine-word clause pertaining to technology:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

The 20/20 Commission characterized this change as one of emphasis rather than substance. In fact, in its report to the ABA House of Delegates, it said that the rule already implicitly encompassed an obligation to remain aware of changes in technology that affect law practice. But the commission chose to make it explicit, the report said, to “offer greater clarity in this area and emphasize the importance of technology to modern law practice.”

“The proposed amendment ' does not impose any new obligations on lawyers,” the report said. “Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent.”

Perhaps the commission was correct that the duty pre-existed the 2012 amendment, but few lawyers saw it that way. “Let's face it ' lawyers historically have ignored (and still do) the technological issues affecting client communications, discovery and production of electronically stored information, and other digital issues in their practice,” lawyers Michael Arkfeld and Stephanie Loquvam wrote at the time in Law Technology News .

Adoption by States

The ABA's Model Rules provide a template for states to follow, but are not binding on lawyers unless and until adopted by their own states' ethics bodies. So far, 14 states have adopted the 2012 revision to Comment 8: Arizona, Arkansas, Connecticut, Delaware, Idaho, Kansas, Massachusetts, Minnesota, New Mexico, North Carolina, Ohio, Pennsylvania, West Virginia, and Wyoming.

All have adopted the technology clause exactly as approved by the ABA except for North Carolina. It modified the phrase slightly to say, “' including the benefits and risks associated with the technology relevant to the lawyer's practice.”

Adoption is pending in Virginia. On Feb. 28, 2015, the Virginia State Bar Council voted to adopt the revised Comment 8. The change still must be approved by the Virginia Supreme Court.

At least one state, although it has not adopted Comment 8, has recognized the duty of technology competence through an ethics opinion. New Hampshire Bar Association Advisory Opinion #2012-13/4, concerning cloud computing, said:

Competent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.

Amid this evolving recognition of lawyers' duty to be competent in technology, the question remains of what exactly it means in practical terms. The comment says that a lawyer must “understand the benefits and risks associated with relevant technology.” Clearly, in order to do that, a lawyer must understand at least something about the technology. But how far does that obligation go?

Welcome to California

In California, a proposed ethics opinion provides one of the clearest answers yet to the scope of this emerging duty. In a proposed ethics opinion published earlier this year for public comment, the State Bar of California says that any lawyer who is involved in litigation must either be competent in e-discovery or associate with others who are.

The opinion, Proposed Formal Opinion Interim No. 11-0004, was published in January and comments were due by April 9. An earlier version of the opinion was approved in February 2014 and then put out for public comment. This later version reflects revisions made after that initial period of public comment.

The opinion begins by acknowledging the ubiquity of technology in contemporary litigation. Then, referencing the ABA model rule, it says that a lawyer's duty to maintain learning and skill in technology must necessarily extend to e-discovery.

What does it mean to be competent in e-discovery? The opinion sets out three general guidelines:

1. There is no one-size-fits-all definition of competence in the e-discovery context. It will depend on the complexity of e-discovery in a particular case.
2. In every case, the duty of competence requires an attorney to assess at the outset what electronic discovery issues might arise during the litigation.
3. If e-discovery will probably be sought in case, then the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney's duty to provide the client with competent representation.

With respect to the lawyer's assessment of his or her own skills, the opinion goes on to list nine specific tasks that someone who is competent in e-discovery should be able to handle:

1. Initially assess e-discovery needs and issues, if any.
2. Implement/cause to implement appropriate preservation procedures for electronically stored information (ESI).
3. Analyze and understand client's ESI systems and storage.
4. Identify custodians of relevant ESI.
5. Perform data searches.
6. Collect responsive ESI in a manner that preserves its integrity.
7. Advise client on available options for collection and preservation of ESI.
8. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.
9. Produce responsive ESI in a recognized and appropriate manner.

'Contracting Out' Your Competence

Where does this leave the attorney who is not competent in e-discovery? According to the opinion, an attorney who lacks e-discovery expertise can satisfy the duty by associating with someone who has the expertise. That someone could be an outside attorney, an outside vendor, a subordinate attorney, or even the client, provided they have the necessary expertise.

Even then, however, the attorney who is lead counsel in the litigation retains overall responsibility for monitoring and supervising the work of the expert.

“The attorney must do so by remaining regularly engaged in the expert's work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand,” the opinion says.

The lead attorney also retains the duty to exercise reasonable care to protect client confidentiality. “A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege,” the opinion explains.

Corporate Counsel

As of this writing, the California opinion has not been finally adopted. Even so, it is fair to say that it is a harbinger of the direction in which ethics law is evolving. There is growing recognition across the country that the practice of law requires some degree of competence in technology. In the forum of litigation, competence in technology necessarily equates with competence in e-discovery.

For corporate counsel, this has dual implications. First, it raises questions about the extent to which you must become competent in technology. Corporate counsel face myriad complex technology issues, both within their companies and in their dealings with the outside world. How much must you understand these various issues?

Second, it raises questions about your duty to supervise the work of your outside lawyers, consultants and vendors. To what extent are you subject to the duty of supervision described in the California opinion? And what degree of knowledge do you need even just to supervise e-discovery and other technology matters?

Some possible answers can be borrowed from medicine ' another professional practice that is facing increasing complexity. One is the recognition that it eventually becomes impossible to fit all the necessary skills and expertise into one human brain. You'll need a team.

Another is that “competence” falls on the low end of a continuum that extends through “expertise” into “mastery.” It may be helpful to view “competence” as analogous to law school education. Three years of law school is not enough to make new graduates truly skilled at practicing law, but it has imparted (we hope) enough about all relevant topics that newly minted lawyers can spot issues and recognize when a problem is beyond their current abilities.

So fulfilling your duty of technology competence may not require a high level of expertise as much as it requires you to know enough to recognize when that expertise is needed. Bringing on outside counsel and outside experts to handle complex matters such as e-discovery makes a lot of sense, but it does not absolve you of all responsibility.

Mark Noel, Esq., is a managing director of professional services at the e-discovery company Catalyst. Robert J. Ambrogi is a lawyer and writer who serves as director of communications at Catalyst.

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Lawyers understand that they have an ethical duty to remain competent in the law and its practice. But far fewer are aware that an emerging body of legal-ethics rules and opinions say that lawyers also have a duty to be competent in relevant technology. And e-discovery, an area of law practice many lawyers still consider a niche, is quickly becoming more relevant to every type of litigation.

A proposed California ethics opinion goes so far as to say that any lawyer who has responsibility for litigation must either be competent in e-discovery or associate with someone who is.

“Not every litigated case involves e-discovery,” the California opinion says. “Yet, in today's technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness has used email or other electronic communications, stores information digitally, and/or has other forms of ESI related to the dispute.”

Given recent trends, this opinion is most likely a foreshadowing of what will routinely be expected of lawyers in the not-so-distant future. But what does it mean for lawyers and, in particular, for corporate counsel?

The Genesis of the Duty

In 2009, then-American Bar Association president Carolyn B. Lamm appointed the Commission on Ethics 20/20. Its mandate was to perform a thorough review of the ABA Model Rules of Professional Conduct in the context of advances in technology and developments in global legal practice. After three years of work, the 20/20 Commission, in 2012, came out with a number of recommendations for amending the model rules. One seemed so minor that it received little attention at the time. It was to amend the comment to the rule on competence to make clear that a lawyer must be competent not only in the law and its practice, but also in technology.

The proposed change was approved by the ABA House of Delegates in August 2012. The actual rule ' Model Rule 1.1 ' remained unchanged. It says:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

The change was to Comment 8 to the rule, which is titled “Maintaining Competence.” The amendment added a nine-word clause pertaining to technology:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

The 20/20 Commission characterized this change as one of emphasis rather than substance. In fact, in its report to the ABA House of Delegates, it said that the rule already implicitly encompassed an obligation to remain aware of changes in technology that affect law practice. But the commission chose to make it explicit, the report said, to “offer greater clarity in this area and emphasize the importance of technology to modern law practice.”

“The proposed amendment ' does not impose any new obligations on lawyers,” the report said. “Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent.”

Perhaps the commission was correct that the duty pre-existed the 2012 amendment, but few lawyers saw it that way. “Let's face it ' lawyers historically have ignored (and still do) the technological issues affecting client communications, discovery and production of electronically stored information, and other digital issues in their practice,” lawyers Michael Arkfeld and Stephanie Loquvam wrote at the time in Law Technology News .

Adoption by States

The ABA's Model Rules provide a template for states to follow, but are not binding on lawyers unless and until adopted by their own states' ethics bodies. So far, 14 states have adopted the 2012 revision to Comment 8: Arizona, Arkansas, Connecticut, Delaware, Idaho, Kansas, Massachusetts, Minnesota, New Mexico, North Carolina, Ohio, Pennsylvania, West Virginia, and Wyoming.

All have adopted the technology clause exactly as approved by the ABA except for North Carolina. It modified the phrase slightly to say, “' including the benefits and risks associated with the technology relevant to the lawyer's practice.”

Adoption is pending in Virginia. On Feb. 28, 2015, the Virginia State Bar Council voted to adopt the revised Comment 8. The change still must be approved by the Virginia Supreme Court.

At least one state, although it has not adopted Comment 8, has recognized the duty of technology competence through an ethics opinion. New Hampshire Bar Association Advisory Opinion #2012-13/4, concerning cloud computing, said:

Competent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.

Amid this evolving recognition of lawyers' duty to be competent in technology, the question remains of what exactly it means in practical terms. The comment says that a lawyer must “understand the benefits and risks associated with relevant technology.” Clearly, in order to do that, a lawyer must understand at least something about the technology. But how far does that obligation go?

Welcome to California

In California, a proposed ethics opinion provides one of the clearest answers yet to the scope of this emerging duty. In a proposed ethics opinion published earlier this year for public comment, the State Bar of California says that any lawyer who is involved in litigation must either be competent in e-discovery or associate with others who are.

The opinion, Proposed Formal Opinion Interim No. 11-0004, was published in January and comments were due by April 9. An earlier version of the opinion was approved in February 2014 and then put out for public comment. This later version reflects revisions made after that initial period of public comment.

The opinion begins by acknowledging the ubiquity of technology in contemporary litigation. Then, referencing the ABA model rule, it says that a lawyer's duty to maintain learning and skill in technology must necessarily extend to e-discovery.

What does it mean to be competent in e-discovery? The opinion sets out three general guidelines:

1. There is no one-size-fits-all definition of competence in the e-discovery context. It will depend on the complexity of e-discovery in a particular case.
2. In every case, the duty of competence requires an attorney to assess at the outset what electronic discovery issues might arise during the litigation.
3. If e-discovery will probably be sought in case, then the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney's duty to provide the client with competent representation.

With respect to the lawyer's assessment of his or her own skills, the opinion goes on to list nine specific tasks that someone who is competent in e-discovery should be able to handle:

1. Initially assess e-discovery needs and issues, if any.
2. Implement/cause to implement appropriate preservation procedures for electronically stored information (ESI).
3. Analyze and understand client's ESI systems and storage.
4. Identify custodians of relevant ESI.
5. Perform data searches.
6. Collect responsive ESI in a manner that preserves its integrity.
7. Advise client on available options for collection and preservation of ESI.
8. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.
9. Produce responsive ESI in a recognized and appropriate manner.

'Contracting Out' Your Competence

Where does this leave the attorney who is not competent in e-discovery? According to the opinion, an attorney who lacks e-discovery expertise can satisfy the duty by associating with someone who has the expertise. That someone could be an outside attorney, an outside vendor, a subordinate attorney, or even the client, provided they have the necessary expertise.

Even then, however, the attorney who is lead counsel in the litigation retains overall responsibility for monitoring and supervising the work of the expert.

“The attorney must do so by remaining regularly engaged in the expert's work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand,” the opinion says.

The lead attorney also retains the duty to exercise reasonable care to protect client confidentiality. “A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege,” the opinion explains.

Corporate Counsel

As of this writing, the California opinion has not been finally adopted. Even so, it is fair to say that it is a harbinger of the direction in which ethics law is evolving. There is growing recognition across the country that the practice of law requires some degree of competence in technology. In the forum of litigation, competence in technology necessarily equates with competence in e-discovery.

For corporate counsel, this has dual implications. First, it raises questions about the extent to which you must become competent in technology. Corporate counsel face myriad complex technology issues, both within their companies and in their dealings with the outside world. How much must you understand these various issues?

Second, it raises questions about your duty to supervise the work of your outside lawyers, consultants and vendors. To what extent are you subject to the duty of supervision described in the California opinion? And what degree of knowledge do you need even just to supervise e-discovery and other technology matters?

Some possible answers can be borrowed from medicine ' another professional practice that is facing increasing complexity. One is the recognition that it eventually becomes impossible to fit all the necessary skills and expertise into one human brain. You'll need a team.

Another is that “competence” falls on the low end of a continuum that extends through “expertise” into “mastery.” It may be helpful to view “competence” as analogous to law school education. Three years of law school is not enough to make new graduates truly skilled at practicing law, but it has imparted (we hope) enough about all relevant topics that newly minted lawyers can spot issues and recognize when a problem is beyond their current abilities.

So fulfilling your duty of technology competence may not require a high level of expertise as much as it requires you to know enough to recognize when that expertise is needed. Bringing on outside counsel and outside experts to handle complex matters such as e-discovery makes a lot of sense, but it does not absolve you of all responsibility.

Mark Noel, Esq., is a managing director of professional services at the e-discovery company Catalyst. Robert J. Ambrogi is a lawyer and writer who serves as director of communications at Catalyst.

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