lawyers ethical duty to be competent in technology and e-discovery

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877.557.4273 catalystsecure.com Luddites Beware Your Ethical Duty to be Competent in Technology and E-Discovery Review the legal groundwork for the ethical duty of technological competence.

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Page 1: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

877.557.4273catalystsecure.com

Luddites Beware

Your Ethical Duty to be Competent in Technology and E-Discovery

Review the legal groundwork for the ethical duty of technological competence.

Page 2: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Maintaining Competence

ABA Model Rule 1.1, Comment 8

“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.”

Page 3: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Arizona, effective Jan. 1, 2015

Arkansas, effective June 26, 2014

Connecticut, effective Jan. 1, 2014

Delaware, effective March 1, 2013

Idaho, effective July 1, 2014

Kansas, effective March 1, 2014

Massachusetts, effective July 1, 2015

Minnesota, effective April, 2015

New Mexico, effective Dec. 31, 2013

North Carolina, approved July 25, 2014

Ohio, effective April 1, 2015

Pennsylvania, effective Nov. 21, 2013

West Virginia, effective Jan. 1, 2015

Wyoming, effective Oct. 6, 2014

14 States Have Adopted Comment 8

Page 4: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Virginia

Adoption Pending in One Other State

On Feb. 28, 2015, the Virginia State Bar Council

voted to adopt the rule change. The change is

pending review and approval by the Virginia

Supreme Court.

Page 5: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Recognized by Ethics Opinion in at Least One State

New Hampshire Bar Association, Advisory Opinion #2012-13/4 (concerning cloud computing)

“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.”

Page 6: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Either be competent in e-discovery or associate with others who are

CA Proposed Formal Opinion Interim No. 11-0004

“Not every litigated case involves e-discovery. 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.”

Page 7: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

CA Proposed Formal Opinion Interim No. 11-0004

‘Competent’ handling of e-discovery has many

dimensions, depending upon the complexity of e-

discovery in a particular case.

The duty of competence requires an attorney to

assess at the outset of each case what electronic

discovery issues might arise during the litigation.

If e-discovery will probably be sought, the duty

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.

Page 8: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Attorney Handling E-Discovery Should be Able to …

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.

Page 9: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Duty to Supervise

Attorney must educate everyone involved 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 the court.

Any risks associated with the e-discovery tasks at hand.

RESPONSIBILITYDUTY

EDUCATION

Can meet the duty through association with outside attorney, outside vendor, subordinate attorney or even the client.

Attorney must maintain overall responsibility for and remain engaged in the work of the expert.

Page 10: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

“[A]n attorney has a duty to assert the attorney-client

privilege to protect confidential communications between

the attorney and client.”

Duty of 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.”

“In civil discovery, the attorney-client privilege will protect

confidential communications between the attorney and client

in cases of inadvertent disclosure only if the attorney and

client act reasonably to protect that privilege.”

Page 11: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Not Just an E-Discovery Concern …

Attorneys are obligated to understand the technology used to secure client information, or they must retain/consult with someone who can make them competent.

AZ Opinion 09-04 How are you working with your IT Department?

In satisfying the duty to take reasonable security precautions, lawyers should consider firewalls, password protection schemes, encryption, anti-virus measures, etc.

Onboarding & Training

Cryptography & Authentication

Encryption Issues: local, device and server

”“

Page 12: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

Where Does Your Data Really Live?

NC Formal Opinion 2008-5 – “If the [lawyer] will be contracting with a third party to maintain the web-based management system, the [lawyer] must ensure that the third party also employs measures which effectively minimize the risk that confidential information might be lost or disclosed.”

AZ Op: The Committee does not suggest that the protective measures at issue … in this opinion necessarily satisfy ER 1.6’s requirements indefinitely.

Page 13: Lawyers Ethical Duty to be Competent in Technology and E-Discovery

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