Litigation Support Tip of the Night

July 5, 2020

The Tip of the Night for June 28, 2020 noted while comment 8 the ABA's Model Rule 1.1 has been adopted by most states, some have changed this provision to the rule, which addresses the need to be knowledgeable about technology relevant to the practice of law. 

Colorado altered comment 8 to place a special emphasis on an understanding of electronic communications.  

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, and changes in communications and other relevant technologies, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

See this document showing changes to the Colorado Rules of Professional Conduct posted on the web site of the Colorado Judicial Branch.  The added language is underlined and boldfaced.  This modification should be considered in light of the duty to keep client information confidential under Rule 1.6.  

June 28, 2020

The ABA's Model Rule 1.1 imposes on a duty of technology competency on attorneys, and has been adopted in most states.   Comment 8 to the rule states that, "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."   See the Litigation Support Tip of the Night for May 9, 2016.  

Some states which have adopted these rules have qualified the language in Comment 8 requiring knowledge of legal technology.

The Supreme Court of the State of New Hampshire states in its court rules with respect to Comment 8 that: 

"This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using."

Supreme Court of New Hampshire Order, dated Nov. 10, 2015 at p. 51, available at: https://www.courts.state.nh.us/supreme/orders/11-10-15-Order.pdf

So, a lawyer is bound to both have knowledge of the electronic discovery methods he or she uses, or those used by attorneys practicing in the same field. 

In New York, Comment 8 to Rule 1.1 states that: 

"To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and (iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R.Part 1500."

New York Rules of Professional Conduct, Effective April 1, 2009, As amended through June 1, 2018, at p. 13, available at: https://nysba.org/NYSBA/Practice%20Resources/Professional%20Standards%20for%20Attorneys/Professional%20Standards%20for%20Attorneys/Rules%20of%20Professional%20Conduct%20as%20amended%20060118.pdf

There is a special emphasis placed on keeping client data secure. 

January 30, 2020

The American Bar Association's Model Rule 3.3 imposes a duty of candor on attorneys requiring them to, "offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal."

Rule 3.3 is relevant to electronic discovery with respect to a counsel's discussion of his or her client's ability to locate electronically stored information; the thoroughness of a search performed by a client of its network data; and contents of electronic productions.  See a post on the ABA's site here.  

Obligations under Rule 3.3 may override an attorney's duty to protect the confidentiality of a client's data.   

A decision by Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania quoted Rule 3.3 of the Pennsylvania Rules of Professional Conduct, "failure to make a disclosure is the equivalent of an affirmative misrepresentation."  Hohider v. UPS, 257 F.R.D. 80, 82 (W.D. Pa. 2009).   Judge Conti faulted the Defendant for failing to be candid with her about its preservation.   "For example, defendant's counsel wrote a letter to plaintiffs' counsel in 2005 stating that defendant was 'in the process of placing a 'Hold,' as that term is defined in the UPS Records Manual, on all categories of documents requested by Plaintiffs in the litigation.' (J. Culleiton letter to C. Bagin at 3-4, May 3, 2005.) It was also represented to plaintiffs' counsel that defendant was 'even going a step further and disseminating a memorandum to applicable managers throughout the Company which describes the litigation and further details the records that are to be held from destruction.' (Id.)  Defendant, however, did not issue the hold at that time, did not disseminate the hold memorandum, and it did not advise plaintiffs of its failure to do so. " Id. 

June 18, 2019

EDRM has published its own Model Code of Conduct, available here.   It establishes five principles for the electronic discovery process, and describes the duties of service providers and their clients with respect to each principle.

1. Professionalism - work should be both accurate and cost effective. 

2 Engagement - reasonably foreseeable parameters for a project should be agreed to.

3. Conflicts of Interest - a service provider should be proactive in identifying conflicts of interest. 

4. Sound Process - a sound process should be implemented and audited to preserve legal defensibility.

5. Security and Confidentiality - a service provider should maintain the security of ESI and communications about a project. 

May 9, 2016

Rule 1.1 of the Model Rules of Professional Conduct addresses an attorney's duty of competency.   It reads in full that, "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 question for us is how much knowledge and skill in legal technology is required.  

 

Comment 8 to Rule 1.1 states that, "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."

 

20 different states have adopted this comment to Rule 1.1, including New York. 

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

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