New and events of the Philadelphia Bar Asso.
Issue link: https://thephiladelphialawyer.epubxp.com/i/574228
W hen the Pennsylvania Supreme Court amended various Rules of Civil Procedure in 2012 to make the electronic discovery (eDiscovery) process less complicated than its federal counterpart, the court expressly declined to adopt federal jurisprudence on electronically stored information (ESI). While attorneys may have paid little attention to these rules changes, they made it clear that attorneys should consider eDiscovery when handling their cases. Then, in November 2013, the Supreme Court revised Comment 8 to Rule of Professional Conduct 1.1 ("Competence") to state 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." Many attorneys probably ignored the import of the comment. But now, this technological ignorance could lead to ethical handcuffs. Fast forward to 2015. EDiscovery is not going away, social media has become a topic that attorneys cannot ignore and those who ignore ESI and social media issues do so at their own peril. In fact, in Formal Opinion 2015-193, the State Bar of California Standing Committee on Professional Responsibility and Conduct highlights with an exclamation point the dangers of ignoring eDiscovery, concluding that "Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters." You can read this opinion at http://bit.ly/1gbN5Yk. The California opinion offers a lot of excellent food for thought. The opinion begins with a hypothetical situation involving an attorney unfamiliar with eDiscovery who is defending a client in litigation with its chief competitor. The attorney makes a series of common mistakes that would apply to many attorneys confronting ESI issues, including: • Allowing a client's network to be searched by opposing counsel's expert/eDiscovery vendor; • Believing that a clawback agreement will protect a client against inadvertently produced ESI, as well as any inadvertently disclosed confidential or privileged documents; • Approving opposing counsel's search terms because they appear to be "neutral"; • Failing to instruct a client to preserve ESI; • Allowing opposing counsel's expert vendor to have unsupervised access to a client's network; • Failing to review the electronic data retrieved by an opposing party's expert vendor; • Learning that a client has deleted ESI as part of its normal document retention policy; and • Belatedly hiring an expert who informs the attorney that the opposing expert vendor's search, using the jointly agreed search terms, led to the disclosure of privileged information as well as irrelevant but highly proprietary information about this client's upcoming revolutionary product. Although California's Rules, like Pennsylvania's, do not state that negligent legal representation, even if it amounts to legal malpractice, establishes an ethical violation that would warrant discipline, it seems only a matter of time until an attorney somewhere becomes the poster child for a disciplinary board. The California opinion is highly instructive in its analysis. The opinion notes that "an attorney's core ethical duty of competence remains constant and that when an attorney does not have the Technical Literacy is an Obligation Ethical Duties with Electronic Discovery are the New Normal ETHICS By DANIEL J. SIEGEL 10 the philadelphia lawyer Fall 2015