Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.


The Digital Two-Edged Sword

Admit it, digital technology has made life a lot more convenient. Even technology neophytes, hunting and pecking on iPads on a Friday afternoon, can sit at home or elsewhere and respond to clients’ emails as if toiling away in a downtown tower.

Then the State Bar posed the question: what are a lawyer’s ethical responsibilities when handling discovery of digitally stored information? Does, one asks, “digital” alter the ethics equation? In a June 26, 2015, formal ethics opinion, the State Bar answered that question.1 For many of us, that answer is, in short, “yes.”

The opinion concludes that the obligations of a lawyer’s duty of competence—Rule of Professional Conduct 3-110—evolve as new technologies develop and find their way into our practice. When it comes to litigation, competence requires, at a minimum, “a basic understanding of, and facility with, issues relating to e-discovery,” including discovery of ESI. That duty may even require in particular instances a higher level of technical knowledge and ability, depending on the e-discovery issues involved and the nature of the ESI.

What about the experienced trial lawyer? Even she or he may have to seek help in cases involving ESI. Why? Because, realistically, since more than 95% of all information, including email communication, is now stored only digitally, every case involves ESI; all discovery is now in some respect e-discovery. The digital sword does have two edges.

What’s a lawyer to do to remain in ethical good grace? Rule 3-110 gives three options to those of us who lack the required technical competence comfortably to address e-discovery issues: (1) we can acquire the necessary skill—difficult for many, especially on short notice; (2) we can associate with or consult someone who has the skill: another lawyer or a consultant; 2 or (3) we can decline the representation—no one wants this as our first choice.

What are the risks of plowing ahead alone? Recent cases underscore that the greatest danger from less than competent handling of a client’s ESI is disclosure of confidential, privileged or sensitive information. The fallout? Malpractice and breach of fiduciary claims against the lawyers, with the former clients relying on Rule 3-110’s competence requirement and section 6068(e)(1)’s mandate “to maintain inviolate the confidence, and at every peril to himself and herself to preserve the secrets, of his or her clients.”

State Bar opinions are only guidance, but experts at trial and courts can rely on them as authoritative, along with the rules themselves, to frame a lawyer’s “duty” for purposes of fiduciary duty and its claimed breach. So we should understand what the new COPRAC opinion teaches.3

Fortunately, the rule itself and the COPRAC opinion give a ready solution to lawyers who do not have the requisite technical competence: simply consult on digital information issues with another lawyer who does. Further good news: the San Diego bar has among its members that expertise.

Cicero’s “O tempora o mores” may still apply. While times and practices may change, we don’t decry them; we embrace and evolve with those changes while keeping fundamental ethical principles steadfast.

-- Edward J. McIntyre

 

1   State Bar Form. Opn. 2015-193, issued by COPRAC, the State Bar’s Standing Committee on Professional Responsibility and Conduct.

2   Consulting with another lawyer with the technical skill gives the added protection of confidentiality that Bus. & Prof Code section 6068(e)(1) and Rule 3-100 mandate; a consultant’s agreement arguably lacks this layer of client protection.

3   For COPRAC 2015-192, see the State Bar website, calbar.ca.gov. The SDCBA Legal Ethics Committee’s opinion 2012-1 addressed the same issues and came to the same conclusions concerning competence and confidentiality. In addition the opinion addressed the impact of digital technology on the duties of communication (Rule 3-500) and candor to the court (Rule 5-200); it can be found at sdcba.org. 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**