All attorneys are familiar with their general ethical duty of competence. The main thing that probably comes to mind when evaluating competence is whether the attorney has an understanding of the law relevant to a particular client’s case. But the duty of competence also relates to case management, and it evolves with changes in technology. A 2014 ethics opinion issued by the California Bar’s Standing Committee on Professional Responsibility and Conduct addressed this aspect of the duty of competence and discussed how unfamiliarity with e-discovery processes can result in a breach. The opinion is informative for attorneys from any state because, as it points out, almost every litigation matter today potentially involves e-discovery.
In 2006, the Federal Rules of Civil Procedure were amended to address e-discovery issues, and California passed its Electronic Discovery Act (modeled after the Federal Rules) in 2009. (Cal. Code Civ. Proc. §2016.010 et seq.) Since there has not been much state case law interpreting the Act, federal law is instructive in this area. The opinion lists several tasks related to e-discovery that an attorney should be able to perform, including implementing preservation procedures, understanding a client’s electronically stored information (ESI) systems and storage, and collecting ESI in a way that preserves the integrity of the data. If an attorney lacks the competence required to handle e-discovery, she essentially has three options: (1) acquire the necessary skills before performance is required; (2) associate with technical consultants or other competent counsel; or (3) simply decline representation.
Although declining representation may seem extreme for an attorney who is well-versed in the law applicable to a client’s case, this opinion explains how much damage can be done by conducting e-discovery without a minimum level of knowledge about the processes. Mistakes made during e-discovery may not only constitute a breach of the attorney’s duty of competence—they can also result in disclosure of privileged information, waiver of the attorney-client privilege, inadvertent suppression of evidence, spoliation, and violation of the attorney’s duty of candor to the court.
A discussion of e-discovery in California can be found in chapter 7 of O’Connor’s California Practice * Civil Pretrial. For information about e-discovery under the Federal Rules of Civil Procedure, look to chapter 6 of O’Connor’s Federal Rules * Civil Trials.