Lawyers know that technology has encroached on the legal realm and impacts the ways they communicate and do business. But many lawyers may not think about how constantly evolving technology has created new ethical issues in their litigation practice. Some of the ethical issues spurred by 21st century technology include technological competence; how attorneys can or should take advantage of social media; and how to manage data in the cloud.
Judges are becoming impatient with attorneys who fail to consider their ethical obligations in the modern era. Attorneys who do not meet appropriate standards may be monetarily sanctioned, forced to write articles outlining their transgressions, or have their fees reduced. See, Swofford v. Eslinger , 2009 LEXIS 111064 (M.D. Fla. Sept. 28, 2009) (sanctions imposed against in-house counsel for failure to preserve evidence); St. Paul Reinsurance Co. v. Commercial Fin. Corp. , 198 F.R.D. 508 (N.D. Iowa 2000) (counsel ordered to write an article explaining why it was improper to assert unfounded objections); Chen v. Dougherty , 2009 WL 1938961 (W.D. Wash July 7, 2009) (attorney's novice eDiscovery skills could not command the rate of experienced counsel).
The Competence Question
Some attorneys may pride themselves on being old-school when it comes to the latest technology, but failing to develop a basic understanding of today's IT environment can constitute an ethical lapse. Attorneys must be competent with regard to technology so that they can cooperate with opposing counsel, preserve and identify evidence and supervise attorneys and non-attorneys.
Attorneys have an obligation to be competent regarding technology under several different American Bar Association Model Rules and the Federal Rules of Civil Procedure (see sidebar, "Ethical Conduct Under the ABA Model Rules and Federal Rules of Civil Procedure").
In today's modern technological era, attorneys are expected to cooperate with opposing counsel. Cooperation may be a difficult concept for many attorneys trained in an adversarial judicial system, but the Federal Rules of Civil Procedure specifically call for cooperation between parties, and the Sedona Conference's Cooperation Proclamation, issued in 2008, has received numerous judicial endorsements.
Cooperation with opposing counsel cannot be meaningful if attorneys are devoid of technical skills. For instance, if you are unaware of the de-duplicating software -- what it can and cannot do in terms of culling the data set -- then you cannot have a meaningful discussion with opposing counsel. You will not know what your software is capable of and more importantly, incapable of. A lack of understanding of the software used on your data set can lead to an agreement that you cannot execute. Or worse, you can execute the agreement but with disastrous results in terms of too much or too little data.
This concept of meaningful cooperation was driven home in Pippins v. KPMG LLP , S.D.N.Y., No. 11-cv-337 (CM) (JLC), 2/3/12). In a sharply worded decision, the court upheld the magistrate's preservation order and denied the motion for protective order. KPMG must now preserve the hard drives of former and departing employees -- unless it can reach an agreement with opposing counsel regarding a sampling methodology. If you were in this situation, would you be knowledgeable enough about sampling techniques and software to have a meaningful and competent discussion with opposing counsel. If the answer is "no", then you could cost your client a lot of time and money and run afoul of your ethical obligations.
Additionally, cooperation with opposing counsel does not fly in the face of zealous advocacy. You can have your cake and eat it too in this situation. You can still zealously and strategically represent your client while cooperating with opposing counsel. "Cooperation with respect to ESI really means engaging in zealous advocacy in the client's interest. It means meeting the opposition directly and forcefully on this ESI battlefield. It also means that the client's interest is frequently best advanced by disclosures, agreements, protocols, and risk reduction techniques, and frank, direct, and informed dialogue with the opposition about ESI. It also means much will not be disclosed unless necessary in response to discovery or otherwise required by the Rules." Symposium, Ethics and Professionalism in the Digital Age , 60 Mercer L. Rev. 863, 917 (2009).
You must be technologically competent enough to search through your data. If not, then the judge may order you to acquire a vendor to do it for you. In Seven Seas Cruises S. DE R.I. v. V Ships Leisure Sam , 2011 U.S. Dist. LEXIS 19465 (S.D. Fla. Feb. 19, 2011), defendants' lack of familiarity and/or training in searching for and producing ESI was sanctionable as a failure to fully cooperate and make full disclosures. Another example of not being technology competent enough is seen in Custom Hardware Eng'g & Consulting, Inc. v. Dowell , 2012 U.S. Dist. LEXIS 146 (E.D. Mo. Jan. 3, 2012), where the court ruled that defendant's proposed search term list was problematic and inappropriate" and their objections to opposing counsel's list were without merit".
Preserving and identifying evidence is another area where attorneys have an ethical obligation to be technologically competent. According to the ruling in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC , 685 F. Supp. 2d 456 (S.D.N.Y. 2010) and 269 F.R.D. 497 (D. Md. pt. 9, 2010), "By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records - paper or electronic - and to search in the right places for those records, will inevitably result in the spoliation of evidence."
Attorneys also need to be technologically competent in order to properly supervise attorneys and non-attorneys during e-discovery and throughout litigation. In Qualcomm Inc. v. Broadcom Corp. , 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008), vacated by, in part, 2008 U.S. Dist. LEXIS 16897 (Mar. 5, 2008), counsel was sanctioned for failing to adequately supervise the junior attorneys. Lead counsel was responsible for the activities of the individuals working under their direction. Additionally, junior level attorneys were found to have ethical responsibilities independent of the senior attorneys instructions. Furthermore, there is a duty to supervise non-attorneys as well. In J&M Manufacturing v. McDermott Will & Emery, plaintiff alleges that its outside counsel negligently failed to supervise the contract attorneys employed by its electronic discovery vendor.
In part 2 of our series, we will discuss an attorney's ethical obligations with regard to social media and cloud computing.
Ethical Conduct Under the ABA Model Rules and Federal Rules of Civil Procedure
The ethical requirements for attorneys as they relate to modern technology are described in several different sets of rules, including:
ABA Rule 1.1 -- Competence
ABA Rule 1.3 - Diligence and Promptness
ABA Rule 1.6 - Duty of Confidentiality
ABA Rule 3.2 - Expediting Litigation
ABA Rule 3.3 - Candor to the Tribunal
ABA Rule 3.4 - Fairness to Opposing Counsel
Fed. R. Civ. P. 1- Speedy and Inexpensive Resolution
Fed. R. Civ. P. 26(g) - Discovery Certifications