Technology is rapidly changing the manner in which businesses operate. This is equally true for professionals, who must incorporate and adapt to technological advances in order to thrive in a competitive marketplace. However, keeping up to date with technology is not merely a matter of protecting the bottom line. Professionals who fail to stay on the cutting edge could violate ethics rules and jeopardize their client’s interests.
The State Bar of California Standing Committee on Professional Responsibility and Conduct recently issued a formal opinion addressing an attorney’s ethical duties in handling discovery of electronically stored information. It its opinion, the Committee considered a scenario in which an attorney defended a sophisticated corporate client in a lawsuit brought by the client’s chief competitor in a jurisdiction that mandates consideration of e-discovery.
At the case management conference, the judge requested that the attorneys produce a joint proposal for e-discovery. Counsel then discussed conducting a search with an agreed-upon list of search terms, and submitting to an agreement that would permit the client to claw back any privileged information.
When the attorney spoke with his client regarding the search, the client said it did not have any electronically-stored information that was not already produced to the attorney in hard copy. The attorney accepted the client’s representation and did not conduct any further action to review the data. Several weeks later, the attorney received a letter from opposing counsel accusing his client of spoliation. The attorney hired an expert to investigate, who determined that the company routinely deleted electronically stored information from its computers and that this information was not preserved in hard copy.
In analyzing the ethical issues applicable to the attorney, the Committee stated that attorneys have a duty of competency and that this includes staying current with changing technology. The Committee continued that where an attorney lacks knowledge in a specific area such as e-discovery, she is required, where appropriate, to consult with another professional who is competent or hire a technical expert to assist her.
Further, because every case today has the potential to include e-discovery, the Committee determined that attorneys must consider whether e-discovery is likely to be an issue in the case and to assess whether she has the skill to meet the technological demands of the particular case. Because the attorney in the hypothetical scenario failed to make an assessment of the cases e-discovery needs or of his own capabilities, and continued to make e-discovery decisions that were detrimental to his client without expert consultation, the Committee concluded that the attorney had breached his duty of competency.
Technology is integral to the professional practice. Accordingly, professionals must ensure that they have the requisite technological expertise for each matter that they take on. A lack of technical skill could render a professional ethically incompetent to proceed with a matter and potentially lead to ethics violations or costly civil liability.