The American common law system is not static; laws adapt over time to reflect social, economic, political, and technological changes. Because of this fluidity, the practice of law requires that its professionals constantly engage in legal education and edification. Specifically, advancements in communication technology have created a new paradigm in which practicing lawyers must develop a working knowledge of information technology to maintain their ethical duty to protect confidential client information. While professional liability for this ethical duty may seem punitive to those reluctant to change, it provides an incentive that ultimately benefits the client, the attorney, and the profession as a whole.
In 2009, the American Bar Association (ABA) created the “ABA Commission on Ethics 20/20” (20/20 Commission) to begin a multi-year review of the ABA Model Rules of Professional Conduct to update the rules to acknowledge and reflect the additional ethical considerations that modern technology continues to introduce in the legal practice. The 20/20 Commission’s goal was to evaluate the current rules and update them where specific reference to technological advancement created a need for clarity in both the rule language and in the comments that follow each rule. With respect to ethical guidance for eDiscovery and the lawyer’s duties arising from use of Electronically Stored Information (ESI), the 20/20 Commission made several key amendments to the rules concerning competency of the attorney, confidentiality of client information, and the way attorneys monitor communications with third party vendors hired to provide technological services for a particular case or firm. Once the ABA rules were amended, the individual states were left to evaluate their own state model rules in and make commensurate changes to their state model rules. The end result, expected to take between one and five years, will be a national standard of professional ethical conduct that holds attorneys accountable for maintaining a basic understanding of the technological tools that continue to pervade and affect the legal profession in theory and in practice.
Whether in front of the bar or behind a desk, every lawyer should have a reasonable understanding of how electronic information is created, stored, and protected; not only is this good advice, it is required by the new ABA rules. Two amendments to the Comments to Rule 1.1 add general and specific references to technology, stating that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” (emphasis added). Adding a reference to relevant technology explicitly imputes upon every lawyer a duty to know the basic features of the technology used in legal practice and implicitly means that a lawyer should also know when to seek outside help when dealing with some new technological elements beyond the lawyer or firm’s technological capability. The implication of this duty from an ethical standpoint is often complicated within the specific context of eDiscovery.
As more and more people rely on electronic technology for communication each day, the volume and complexity of discoverable documents expands exponentially. To that end, many firms dealing with high-volume ESI from clients now hire outside companies to perform eDiscovery functions such as data retrieval and Computer Assisted Review. In Computer Assisted Review, the vendor can take a sample set from the total volume of electronic documents and establish a relevance index with the attorney by ranking each document in the sample set on a scale (i.e., 0% to 100% relevance). Then, the attorney can decide to limit his or her own review to the electronic documents that score above a certain ranking. Where reviewing documents one-by-one would be cost prohibitive for the client, the benefit of Computer Assisted Review could be worth the expense. However, it is not without risks. Because of the new amendments to the Rule 1.1 comments, attorneys involved in eDiscovery-rich litigation have an ethical duty not only to understand how the technology itself works, but more importantly how the limitations of attorney-client privilege interact with the use of that technology. Specifically, where a court may require parties relying on Computer Assisted Review to identify how each party determined which types of documents were relevant, and more importantly which documents were deemed not relevant, disclosing that information to justify the scope of the discovery request may reveal strategy and opinion information, which encroaches on the attorney work product boundary protected by attorney-client privilege.