Experts Consider E-Discovery Implications of New ABA Ethics Rules Amendments
For years, lawyers have not only embraced their Luddite ways, they've touted them as a point of pride. It has been argued that the practice of law is by nature one of thoughtful investigation and analysis, not naturally suited for the fast-paced, ones and zeros world of computers. Many lawyers still prefer legal pads over iPads, written letters over email. However, there is little doubt even by the most ardent of legal traditionalists that technology has and will continue to transform the legal profession. Recognizing this evolution, the American Bar Association (ABA) House of Delegates recently voted to amend its Model Rules of Professional Conduct and commentary to address lawyers' use of technology.
While the amendments themselves are somewhat vague, many experts believe they could ultimately have some significant impacts, especially in technology-dependent areas of the law, like e-discovery. The ABA rules amendments were the subject Exterro's recent webcast, titled New ABA Amendments: Changing Attorneys Relationship with Technology. Experienced attorneys and e-discovery experts John Barkett, Seth Row and Scott Giordano discussed three of the main themes that were addressed by the rules amendments: competency, keeping client information confidential and monitoring communication.
Competency is addressed in rule 1.1 of the ABA's Model Rules of Professional Conduct. Row, a partner at Parsons Farnell & Grein, explained that the significant change was not made to the actual rule, rather, to the comment that follows the rule, which provides interpretative guidance on the rule's application and meaning. Added to the comment was that lawyers must stay abreast to changes in the law and its practice, and that they understand of the benefits and risks associated with relevant technology. Row said the rule change could impact how lawyers go about outsourcing e-discovery activities. E-Discovery processes are supported by a myriad of vendors, each publicizing its specific methodologies and technological capabilities. As part of understanding the benefits and risks associated with the technology, lawyers will need to carefully vet these vendors and verify that their processes and products are indeed defensible. The discussion is especially relevant in the context of computer-assisted review. Barkett, a partner at Shook Hardy & Bacon, said that each computer-assisted review technology employs a slightly different method for identifying relevant documents. Part of lawyer competency, he said, will be not only understanding how a particular tool works but also identifying its technical limitations.
Keeping Client Information Confidential
Protecting confidential information is addressed in rule 1.6 of the ABA Model Rules. The amendments add that a “lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." With electronically stored information (ESI) growing at exponential rate, legal teams face an increasing risk of producing privileged material during e-discovery. The speakers suggested that one way lawyers can make a “reasonable effort" to prevent inadvertent disclosure is to take advantage of Federal Rules of Evidence 502 (b), which protects against the waiver of privilege when the disclosure is inadvertent and reasonable steps were taken to prevent disclosure, and 502 (d), which allows parties to reach agreement on non-waiver. On the topic of FRE 502 (b) and (d), Barkett said, “Honestly, I cannot imagine anyone practicing in a federal court in any lawsuit where production is going to occur where you wouldn't have the court routinely have a 502 (d) paragraph entered in the rule 16 scheduling conference order. It just makes no sense to me not to do that routinely."
Rule 5.3 deals with the supervision of non-lawyer service providers. Added to the rule comment was that lawyers must make “reasonable efforts" to ensure that lawyer “gives reasonable assurance" that that the third party engages in conduct that is “compatible with professional obligation" of the lawyer. One of the potential practical impacts is that lawyers will need to ask the right questions of outside vendors, such as document reviewers, prior to retaining their services to ensure that they meet the professional standards as laid out by the ABA Model Rules. According to the presenters, areas to focus on include the following:
- Reputation and experience - is the service provider an unproven startup company or reputable one with a verifiable track record?
- Nature of the services being sought – are there any inherent risks that need to be addressed ahead of time?
- Terms of the engagement – what security safeguards are in place to protect against sensitive information getting in the wrong hands?
The ABA rules are not binding. Rather, they are intended to serve as a model for the ethics rules specific to each state. Barkett said that none of the rules are particularly controversial, and he expects that they will all be adopted at the state level. However, Row felt that changes to the definition of attorney competency may be debated because of the vagueness surrounding what is actually required.
To watch the full Exterro webcast “New ABA Amendments: Changing Attorneys Relationship with Technology," click here.