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Attorney Supervision Of Vendor Work

Comment 4 to Rule 5.3 of the Model Rules of Professional Conduct, addresses the increased tendency of clients to select vendors who provide electronic discovery services. It states that:

4] Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

Model Rule 5.3 in general concerns the duty of a lawyer to ensure that both other lawyers and nonlawyers working for her or him perform their work in a way that is compatible with a firm's professional obligations. Model Rule 1.2 concerns the scope of representation and the allocation of authority between a lawyer and her client. The comment suggests that a lawyer may not be directly responsible for the performance of an electronic discovery vendor, if responsibility for monitoring the performance of collection, processing, document review and so forth is assumed by the in-house counsel. The term monitoring is used to reflect the fact that the work is not done under the direct supervision of the attorney, but performed off-site away from a law office.

An America Bar Association report on the 2012 amendments to the Model Rules warns that a lawyer is never completely free from her duty to vouch for vendor's work:

". . . if a client instructs the lawyer to hire a particular electronic discovery vendor, the lawyer cannot cede all monitoring responsibility to the client, given that the lawyer may have to make certain representations to a tribunal regarding the vendor’s work."

Nevertheless this is a step away from the precedent set in Zubulake V, that an attorney has an affirmative duty to monitor the discovery process.

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