Keeping Up with Evolving Attorney Competence Requirements

The Standing Committee on Professional Responsibility of the State Bar of California earlier this year issued a detailed advisory Opinion on the scope of an attorney’s duties of competence in connection with technology issues in litigation, specifically regarding electronically stored information (“ESI”) and e-discovery.

Formal Opinion No. 2015-193 provides that an attorney has an ongoing and evolving duty of competence as technology evolves, including remaining aware of relevant technology and changes that may impact litigation. At a minimum, competence in this context requires a basic understanding of e-discovery and ESI, sufficient for an attorney to identify the issues and processes required to comply with the rules and to protect client interests and information. But, depending on the circumstances, competence may also require a heightened technological knowledge, and the ability to discern when outside or expert assistance is required to manage ESI in discovery.

The Opinion illustrates a discovery scenario in which a hypothetical attorney, representing a corporate client in litigation by a competitor, fails to handle e-discovery and ESI properly, resulting in violations of both the attorney’s duty of competence under Rule 3-110(A)—for the attorney’s actions and for the actions of those the attorney is, or should be, supervising—and the attorney’s duty of confidentiality under Business and Professions Code section 6068 and correlated Rule 3-100(A).

In the context of e-discovery and ESI, at a minimum, the duty of competence in Rule 3-110(A) requires attorneys to be able the handle the following:

• “initially assess e-discovery needs and issues, if any;
• implement/cause to implement appropriate ESI preservation procedures;
• analyze and understand a client’s ESI systems and storage;
• advise the client on available options for collection and preservation of ESI;
• identify custodians of potentially relevant ESI;
• engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
• perform data searches;
• collect responsive ESI in a manner that preserves the integrity of that ESI; and
• produce responsive non-privileged ESI in a recognized and appropriate manner.”

Attorneys may enlist curative assistance under Rule 3-110(C), of competent co-counsel or an outside expert.  However, an “attorney must retain overall responsibility,” meaning the attorney has a duty to supervise any support personnel properly, and may not rely solely on any third party, including internal client personnel, to ensure adequate protection of client interests and compliance with the applicable rules.

Similarly, the duty of confidentiality under Business and Professions Code 6068 and Rule 3-100(A) requires an attorney to be proficient in the technology processes to prevent the disclosure of confidential client information, attorney-client privileged information, and attorney work product.

Significantly, a clawback provision, which details a process by which inadvertently disclosed information must be returned, is not alone sufficient to protect confidentiality. The disclosure of confidential information in e-discovery may not be considered “inadvertent” if the attorney is not sufficiently diligent to protect its confidentiality.