Ethics opinion: Assess risks before releasing electronic
files
By Amy Yarbrough
Staff Writer
Attorneys not sure how to respond to e-discovery issues
should either read up, work with an expert or decline to take the case to avoid
possible misconduct, according to a recent ethics opinion.
In an advisory opinion issued June 26, the State Bar’s
Standing Committee on Professional Responsibility and Conduct (COPRAC) warns
that even if an attorney’s intentions are good, they risk violating the duty of
confidentiality if they aren’t up to speed.
“The ethical duty of competence requires an attorney to
assess at the outset of each case what electronic discovery issues might arise
during the litigation, including the likelihood that e-discovery will or should
be sought by either side,” the advisory opinion states. “If e-discovery will
probably be sought, the duty of competence requires an attorney to assess his
or her own e-discovery skills and resources as part of the attorney’s duty to
provide the client with competent representation. If an attorney lacks such
skills and/or resources, the attorney must try to acquire sufficient learning
or skill, or associate or consult with someone with expertise to assist.”
The opinion cites a hypothetical situation in which an
attorney assumes his client, a large company with an information technology
department, understands network searches better than he does, figures they have
turned over all the information requested by opposing counsel and takes no
further steps to guide them other than telling them to provide a vendor access
to their server on a certain date. After a search is run using search terms
agreed to by both sides, opposing counsel accuses him of destroying or
withholding evidence and threatens sanctions.
The attorney later hires an e-discovery expert who assesses
the situation and tells him that potentially responsive evidence had been
deleted from the client’s computers as part of the client’s normal document
retention policy. The expert also tells the attorney that due to the breadth of
the search terms he agreed to, both privileged information and irrelevant but
highly proprietary information about a groundbreaking product that’s about to
be debuted has been released to a competitor.
Rather than proceed based on assumptions, attorneys ought to
be able to by themselves, or with the help of an expert, assess e-discovery
needs and issues, put procedures in place to preserve the electronically stored
information, understand the client’s systems and storage and be able to figure
out who possesses the potentially relevant information, the opinion states. In
addition, they should advise the client on options for collecting and
preserving the information. Whomever they are working with should be capable of
having a meaningful discussion with opposing counsel concerning an e-discovery
plan, performing data searches and collecting electronically stored information
in a way that preserves its integrity and produces nonprivileged information in
a “recognized and appropriate manner.”
The opinion also notes that while e-discovery is relatively
new to the profession, the requirement that attorneys competently represent
their clients is not.
“Electronic document creation and/or storage, and electronic
communications, have become commonplace in modern life, and discovery of ESI is
now a frequent part of almost every litigated matter,” it reads. “Attorneys who
handle litigation may not ignore the requirements and obligations of
e-discovery.”
COPRAC's ethics opinions are not binding, but are often cited and given great weight in discipline decisions by the State Bar Court and the California Supreme Court.
To view other advisory opinions related to technology, visit
this Ethics
and Technology Resources page.