Attorney competence is currently one of the most-discussed issues in e-discovery. Not surprisingly, much attention has been paid to the proposed ethics opinion issued last year by the State Bar of California that addresses an attorney’s ethical duties in the handling of the discovery of ESI. (See e.g., our previous blog post summarizing topics addressed at the Gibbons Eighth Annual E-Discovery Conference.) In response to several critical comments received during the public comment period, the California Bar’s Standing Committee on Professional Responsibility and Conduct met in December 2014 and issued a revised version of Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests). The public comment period for the revised version of the proposed opinion ends on April 9, 2015.
The revised opinion is best described as a scaled-back version of the original. For example, the revised opinion limits its analysis to the duties of competence and confidentiality, whereas the original opinion also discussed the duties of candor and not to suppress evidence. Also, the revised opinion eliminates from the factual scenario the more egregiously negligent conduct of the hypothetical attorney that did not necessarily relate to ESI-handling competence. However, the revised opinion adds an extended discussion of an attorney’s obligation to supervise the work of subordinate attorneys and non-attorney employees or agents, such as a client’s IT staff or an outside e-discovery vendor.
Despite these revisions, the opinion’s underlying message remains the same. As new technologies develop, an attorney’s ethical obligations under the duty of competence evolve. Competence now requires a basic understanding of e-discovery and the issues that arise when litigation involves the discovery of ESI. Therefore, an attorney lacking a basic understanding of e-discovery, even an otherwise highly-experienced attorney, must in certain circumstances either: (1) acquire sufficient knowledge and skill before taking on the representation; (2) associate with or consult technical consultants or competent counsel; or (3) decline the representation.