I started my career as a commercial litigation attorney right after the advent of e-discovery and have witnessed the interface between technology and the law on a daily basis. Over time, I have come to understand how electronically stored information (ESI) is created, stored and retrieved and how technology can assist with the process. And I have read with interest court opinions handing down sanctions or admonishing lawyers for ignoring technological issues affecting the discovery and production of ESI.
Late last year, the ABA formally amended the Model Rules to require that lawyers keep pace with “relevant technology” in order to represent clients competently. The new comment to Model Rule 1.1 states:
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.
Although the Model Rules are not designed to be a basis for civil liability, plaintiffs can easily draw from them to create a case against lawyers. This amendment makes clear that failing to stay abreast of technology can place you and your firm at risk.
Here are three examples of how attorneys at three different levels of experience can minimize that risk:
1. Supervising attorneys need to take an active role
E-discovery is often supported by vendors and associates. But to understand the “benefits and risks associated with relevant technology,” supervising attorneys need to do more than just oversee. They need to actively supervise the e-discovery process by understanding the benefits and risks of the technical tools used, by consulting with clients, and by taking an active role in the preservation, search and retrieval of ESI. Firms can also vet vendors and verify that the processes and products being used are defensible under current standards.
2. Associates need to collaborate with supervising attorneys
Associates often become the “go-to” attorneys for e-discovery at law firms. However, just because associates may have more technical knowledge than their supervising attorneys, doesn’t mean they get to call the shots. Associates should help supervising attorneys fulfill their role by providing them with the benefits of the associates’ technical knowledge, rather than just handling the entire e-discovery process for them.
3. Law firm general counsel should promote technical competence
General Counsel can help avoid risk by ensuring that the firm’s lawyers, especially litigators, are receiving CLE’s that provide a solid understanding of the capabilities and functions of various e-discovery tools employed during the preservation, search and retrieval process. Law firms also should keep their lawyers up to speed on new technical tools and inform them of the risks and benefits related to these new developments. Firms can also develop a list of preferred vendors that have already been vetted so that lawyers don’t have to vet vendors on a case by case basis. Not only will such training minimize risk, but it also can give the firm a competitive advantage over less technically proficient firms.
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