Electronic discovery jurisprudence boasts more published decisions with judges bemoaning attorney misconduct than any other area of law. Sometimes this judicial anger stems solely from the conduct of the parties to litigation, such as in U.S. v. Johnson, 2008 WL 2060597 (E.D. Va. May 15, 2008). In this criminal case, the defendant slipped altered emails to his counsel for use during trial. His attorney blew the whistle on his client and withdrew from representation as soon as he discovered what his client had done. However, in the majority of cases, the misconduct from which the judicial anger stems originates from either lawyer and client or the lawyer alone. See e.g., Phoenix Four, Inc. v. Strategic Resources Corporation, 2006 WL 1409413 (S.D.N.Y. May 23, 2006) (sanctions imposed against both client and attorney); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) (simple negligence alone is sufficient to justify adverse inference sanction, especially where plaintiff’s counsel was “purposely sluggish” in not producing the emails until after the trial had started).
Examples of unethical behavior range from outright intentional fraud, to gross negligence, and to simple attorney negligence. Surprisingly, even unintentional negligence can be unethical conduct. See e.g. Rule 1.1 ABA Model Rules of Professional Conduct:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Some experts believe that attorney incompetence in e-discovery is so widespread, that it presents a massive ethical crisis across the entire legal profession. Anecdotal evidence from e-discovery vendors confirms this. E-discovery vendors probably deal with more attorneys and law firms around the country than anyone. These vendors privately state that very few of their customers are technologically sophisticated. They often have humorous anecdotes regarding attorney requests illustrating their lack of technological competence. Of course, when you do not have sophisticated buyers, sellers tend to take advantage of that. This is one of the reasons e-discovery vendor costs are often shockingly high.
Negligence is a large part of the story on ethical misconduct in e-discovery, but not the whole story. Case law, exemplified by Qualcomm, suggests there is far more to the sanctions being imposed by judges all over the country than “just” lawyer incompetence. When I began my career in 1980, the imposition of sanctions, especially against attorneys, was a very rare event and motions based on spoliation were unheard of. Now they are commonplace. Why is this? It is a difficult and puzzling question.
Surely the profession has not suddenly become more sinister than before; although some suggest that the dominance of large firms as mega-business enterprises is causing a significant decline in overall ethics. Galanter, Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 Stan.L.Rev. 1867 (April 2008). There may be some truth to this, but a general decline in ethical standards does not explain why e-discovery jurisprudence is so rife with malfeasance.
Lawyers Are Not Keeping Up With Technology
Part of the answer lies with the incredible exponential technological advances occurring over the last twenty years. The concept of society has transcended the paradigm of a nation-based industrial world, to that of a global-based techno-centric world. The rapidity of this change in civilization is unprecedented in human history. This transformation has had profound effects on the nature and quality of evidence and the processes necessary to root out this evidence. See: Information Inflation: Can The Legal System Adapt? 13 Rich J.L. & Tech 10 (2007). In fact, e-discovery was birthed from this paradigm shift. See: Intellectual Foundation of Electronic Discovery.
Business and all other sectors of society have undergone this same rapid transformation. Yet, they seem to be rising to the challenge of new technologies better than the legal profession. True, there have been some spectacular ethical disasters in business, symbolized by the collapse of Enron and Arthur Anderson. But once again, you could point the blame on their attorneys, especially their in-house counsel, who failed to steer these companies towards conduct consist with the requirements of established law.
The failure of the legal profession to keep up with technology is primarily a result of two factors: (1) the archetypical personality of most lawyers; and, (2) the failure of most law schools to adapt to the modern technological revolution. Most lawyers are not strong in math, science, or engineering. There are exceptions, of course; we call them IP (Intellectual Property) lawyers. But for the most part “The Law” attracts people who are gifted with a particular kind of liberal arts logically-based intelligence that inclines them to “computer-phobia.” In fact, the LSAT admissions test, designed to sort and rank potential law school applicants, solely tests logical reasoning and reading comprehension skills. A student could easily achieve a perfect score on the LSAT without knowing how to plug in a computer.
Most law schools have ignored the problem of e-discovery altogether, and offer no classes on the subject. There are a few notable exceptions, such as Cumberland’s Law School with Judge John Carroll, and the University of Florida’s Law School with Holland & Knight’s Bill Hamilton. These schools are the rare exception to the rule and most law schools have not stepped up to the plate to address this problem.
Since the root of the lawyer Luddite mindset is grounded in legal education, the answer also lies within the legal education system. Law schools must include electronic discovery in their standard curricula and broaden their recruitment and admission standards to include the technologically gifted.
The prevalence of technology in the law is a strong driving force behind the decline of ethics in e-discovery. This is clear. But this observation, in and of itself, does not provide a theoretical construct to understand the root of unethical conduct in e-discovery. Such understanding requires a thorough analysis of the rules of ethics and observation of legal practice. This article presents such an analysis, and offers a theory defining the root of ethical malfeasance in e-discovery situations. I will present this theory as a thesis at a symposium on e-discovery ethics at Mercer Law School in November 2008, entitled “Ethics and Professionalism in the Digital Age.”
This symposium will be the first academic event that I know of to seriously address issues of e-discovery ethics. The Key Note speech will be provided by Professor Monroe H. Freeman, one of the country’s leading scholars on legal ethics, known for promoting zealous advocacy. There will be two ethics panels. The first will be led by Jason Baron who will present his ethics thesis entitled: “E-Discovery and The Problem of Asymmetric Knowledge: Some Thoughts on the Ethics of Search and Information Retrieval In Light of Recent Case Developments.” The panel to respond to his thesis will be Judge John Facciola and Chilton Varner of King & Spalding. Next, I will present my thesis summarized here entitled: “The Wicked Quadrants: A Theoretical Construct for Understanding Unethical Conduct in e-Discovery.” My panel to respond will be Judge David Baker and Bill Hamilton. An edited transcript of the proceedings will be published in the 2009 Spring Edition of the Mercer Law Review, along with an updated version of this article.
The Wicked Quadrants: A Rubric to Understand the Root of Unethical Conduct in e-Discovery
There are four fundamental forces at work in e-discovery, which, when considered together, explain most attorney misconduct: (1) a general lack of technological sophistication; (2) over-zealous attorney conduct; (3) a lack of development of professional duties as an advocate; and, (4) legal incompetence. These so-called “Wicked Quadrants” are depicted in the diagram at the top, and again in the cross format diagram below. The four-arrow cross-graphic is designed to show how these forces interact in an imbalanced fashion to explain lawyer misconduct.
The previously discussed radical transformation of society is the first and foremost of the four factors to consider to understand e-discovery misconduct. The other three factors arise from general ethical considerations that are not in any sense unique to electronic discovery and are addressed in the American Bar Association’s Model Rules of Professional Conduct.
These four criteria interact with each other in varying ways to explain the many forms and types of attorney e-discovery misconduct. Unethical or illegal behavior by parties to litigation themselves are influenced by different factors, including raw emotional ones such as greed, fear, and hate. These four criteria do not apply to the parties to litigation, but rather only their attorneys.
Duty to Clients v. Professional Duties
The Wicked Quadrant consists of two fundamental and diametrically opposed duties applicable to all attorneys. On one side of the scale lies an attorney’s duty to clients, and on the other lies an attorney’s ethical duty to the profession, including opposing parties, opposing counsel, and the courts.
There are four rules regarding an attorney’s ethical duty to the profession that are relevant to e-discovery: Rule 1.1 Competence; Rule 3.2 Expediting Litigation; Rule 3.3 Candor Toward the Tribunal; and, Rule 3.4 Fairness to Opposing Party and Counsel. Subsection (d) of Rule 3.4 pertains specifically to discovery and prohibits a lawyer from making “a frivolous discovery request” or failing “to make reasonably diligent effort to comply with a legally proper discovery request.” The Commentary to Rule 3.4(d) explains that:
The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.
Model Rules of Prof’l Conduct R. 3.4 cmt.  (2007)(emphasis added). Yet in most instances of e-discovery misconduct, these four rules of professional duties are outweighed by two rules codifying an attorney’s duty to clients: Rule 1.3 Diligence and Rule 1.6 Confidentiality.
The first, and by far the most “wicked” of the client duty rules, is the model Rule 1.3 Diligence.
Client-Lawyer Relationship – Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
As the Commentary for the Model Rules of Professional Conduct explains:
Rule 1.3 Diligence – Comment
 A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.
Of course a client will readily appreciate the actions taken by their lawyer to fulfill these duties. In fact, the Commentators recognize the inherent dangers of excessive zeal, and warn about excesses, but stop short of actually banning them:
A lawyer is not bound, however, to press for every advantage that might be realized for a client . . . . The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
A lawyer is not bound to press every advantage, but not prohibited either. They are not required to use offensive tactics, but such tactics are not forbidden by ethical code. Naturally, lawyers frequently engage on over zealous representation and clients normally react favorably to this behavior. The client is, after all, in a dispute with the opposing party and emotions frequently run hot, even in commercial litigation between large businesses.
The second client-directed ethics rule, Rule 1.6, also encourages misbehavior at times, albeit not nearly as often as the zealous advocacy rule.
Rule 1.6: Confidentiality of Information.
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
The secrecy rule of ethics, buttressed by the attorney-client privilege and attorney work-product privilege, has served as a cover, and sometimes excuse, for a host of misconduct. The lawyer may know that his client has not disclosed all of the harmful email, or has engaged in a deliberately negligent search, but feels constrained by his duty of confidentiality. This duty is antithetical to the transparency of e-discovery conduct that facilitates cooperation between counsel and the court.
The impact of this rule is obvious in the Qualcomm case, where outside counsel tried to blame the non-disclosure of thousands of emails on their client. When the massive fraud designed to conceal highly relevant email was later discovered, one of the excuses offered by outside counsel was that counsel could not disclose their suspicions of fraud as they were prohibited by the California state law equivalent of model Rule 1.6
Three rules of ethics based on duties to the profession as a whole are particularly relevant in e-discovery. These rules, in theory, should balance and constrain the two client-centered rules. These rules act as three angels whispering in the good ear of each litigation attorney. They are, in pertinent part:
Advocate – Rule 3.2 Expediting Litigation.
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Advocate – Rule 3.3 Candor Toward The Tribunal
a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . .
(3) offer evidence that the lawyer knows to be false. . . .
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Rule 3.4 Fairness To Opposing Party And Counsel
A lawyer shall not:
(a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; . . .
When attorney e-discovery misconduct arises, it can be attributed to failure of an attorney to follow the counsel of one or more of these three ear-whispering angels.
There is, however, yet another rule of professional conduct that frequently comes into play in e-discovery, the rule of professional competence.
Advocate – Rule 1.1 Competence
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.1 falls on the side of professional duties, but is in many respects unlike the three angels. Indeed, it has always enjoyed a special prominence in our legal tradition for a variety of reasons, including pride in quality craftsmanship. Competence has also played an important role in tempering excessive zeal in diligence. By tradition, the most highly skilled do not need to resort to adversarial excess to prevail. Their competence alone will carry the day without use of bluster and sharp elbows.
These six ethical duties, two on the side of client representation and four on the side of the court and profession as a whole, should, in theory, be in balance. But in practice, especially in the field of e-discovery when unethical conduct is involved, these rules do not balance. The duties to the client are given far more weight by many attorneys than the duties to the profession.
The reason for this imbalance is easy to understand. The client duties have built-in economic incentives. Their benefits are obvious to the client. When an attorney carries out these duties, the fees for the attorney’s services are more likely to be paid. The client is likely to further reward this behavior by requesting additional legal services. This then leads to secondary reward for this conduct by the law firm in which the attorney is a member. As law firms grow larger and closer to businesses, these rewards are intensified. Bluntly, money is the thumb on the scale and greed has corrupted attorneys’ ethical compasses.
Conversely, when an attorney discharges professional duties, the benefits to the client, if any, are only secondary and remote from the client’s view. For instance, the client might not realize that candor to the tribunal makes their attorney more effective in advocating their position. The discharge of these professional duties might not only be unappreciated, but in many circumstances, they might be resented. For example, a client might not want to disclose an email that significantly damages their case, especially if they naively think they could easily get away with hiding it and win. They might resent it when their lawyer discloses the email anyway, especially if this later leads to loss of the case.
Fulfillment of these professional duties may in some circumstances lead to conflicts between attorney and client. It can also often lead to passive resistance such as delays in payment of bills or refusals to pay altogether. Even if a fee is paid, many clients will think twice in retaining that lawyer again, since they may resent the divided loyalty between professional obligations and zealous representation. An unsophisticated client may not realize that every lawyer worth his or her salt takes both these obligations seriously. The negative disincentive to listen to the three angels is magnified by the law firm in which the lawyer is a member. They only see an attorney without a growing client base. They may respect their partner’s ethics, but they will rarely reward such behavior economically.
Since the fulfillment of professional duties has no built-in financial reward, and in fact can sometimes be costly, it often is outweighed by an attorney’s economic interests. This may explain why the Bar has developed so many professional duties and rules over the years. It was done in the vain hope that the sheer quantity of the rules would outweigh the obvious financial disincentives. They have not. The state bar associations could promulgate ten more rules requiring professional conduct and it would not put these competing interests in balance. The fundamental issue is that financial rewards are primarily offered for only one side of the equation. Further, violations of the professional duty-type rules are only rarely detected, and when complaints are filed, the disciplinary actions imposed are relatively light. The bar associations are primarily focused on trust account violations, not candor to the tribunal or fairness to opposing counsel.
Attorney competence and corresponding model Rule 1.1 are such powerful forces in the legal tradition in the United States that it is an over simplification to solely look at the problem of ethics in e-discovery in a dualistic manner, client versus profession, as we have in Part One of this essay. Another element of complexity must be added to get a better understanding of the problem. Competence should be understood as its own ethical force and the issue should be triangulated as shown below.
This tripartite structure is a better diagram to understand the true dynamics of legal practice. Legal competence serves as an independent upward force, along with professional duties, to counter-balance the pressures and temptations involved with fulfillment of duties to clients. The forces of Law and Profession work hand-in-hand to offset the demands of some clients, typically implied, to prevail over their adversaries at all costs.
Most of the time the temptations of greed and power do not cause “lawyers to behave badly.” Certainly, lawyers do not make a practice of lying to courts and opposing counsel, even though they could probably get away with it and maximize their income in the process. There is more to this picture than simple economics. The law, after all, attracts many who are concerned with justice and care about doing the right thing. Most lawyers have strong moral fiber and need but little encouragement to do the right thing. The vast majority of lawyers are more than pen-and-quill mercenaries. Integrity, professional pride, and competence temper their financial motivations. Moreover, some enlightened clients recognize and financially reward professional competence and are influenced by professional reputation in the lawyer selection process.
Unfortunately, most clients are not in a position to evaluate attorney competence. Only repeat litigants, typically large corporations, have enough experience with litigation to gain knowledge of the competence of litigation attorneys. The largest litigant class in the U.S. is the insurance industry. Insurance companies make up the bulk of every court’s docket. In the past, they would routinely employ the best skilled attorneys in every locale and were willing to pay for such quality representation. Although the defense bar is still usually of superlative quality, more and more insurance companies today are driven primarily by cost. They are unwilling to pay for quality representation. In fact, low rates demanded by insurance companies have become notorious. Over the past ten to fifteen years this “penny wise and pound foolish” approach by the insurance industry has driven many of the best defense practitioners into other areas of practice. These seemingly sophisticated clients should know better.
Since legal competence seems to be rewarded economically less and less in all fields of litigation, the decline of pecuniary benefit to attorneys does not fully explain the dramatic decline of ethics in e-discovery. Here, the decline has been disproportionately great. The explanation lies in the previously mentioned competence gap in e-discovery by most trial lawyers. This deficiency, coupled with the dramatic changes in technology over the last few decades, has led to our current tenuous ethical position.
To further test and weaken the restraints which competence and other professional duties typically place upon unethical conduct, the strategy demanded in e-discovery, when it is performed competently, is fundamentally different than traditional adversarial strategy. When practitioners in e-discovery attain a high degree of technical competence, they realize that the cooperative model must be employed. In fact, I have yet to meet an experienced attorney in this field who does not agree with this proposition.
Transparency and cooperation, or at least attempts at cooperation, are imperative for e-discovery to be performed in an efficient and economic manner. This is discussed at length in last blog: Hospital Defendants Martyred in the Cause of Cooperative e-Discovery. This new model of competence is at odds with the training of most experienced attorneys, and to them appears to be at odds with model Rules 1.3 and 1.6, diligence and confidentiality. While the cooperative model of e-discovery is not at odds with the concept of “diligence,” this concept is hard to understand without practical experience in the area. Most attorneys today, especially litigators, mistake “diligence” with adversarial excess. As the Sedona Conference Cooperation Proclamation points out, cooperation in discovery is perfectly consistent with zealous advocacy: “Cooperation does not conflict with the advancement of their clients’ interests – it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.”
Attorneys of today are, on the whole, more competent and better prepared than attorneys of the past. Certainly the standards for admission to law schools are steadily increasing and it has attracted many very intelligent people. Further, the vast majority of the people in the legal profession have very solid moral ethics and good judgment in this area. Indeed, the screening of applicants by state bar associations appears to be more severe and careful than in was in the past. Yet, the growing bad behavior of lawyers in the field of e-discovery is irrefutable.
The challenges and inherent conflict between duties to clients and professional duties have been present in the law for a long time. The balance appears to have shifted in the past few decades toward the duties to clients. Some believe this can be explained by the general shift of law firms to more business-like operations. See Eg. Galanter, Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, supra. Still, this shift in business models does not fully explain the glut of bad behavior in e-discovery attorney conduct.
E-discovery is particularly vulnerable to ethical indiscretions due to the same exponential explosion of technology that created the field of e-discovery to begin with. Keeping up with ever changing technology is a challenge for all legal practitioners. But if lawyers in other fields fail to keep up technology, it does not usually affect their core competency as an attorney. They can be technologically incompetent and still practice at a very high level of legal competence. Their professional competence can thus serve as a strong buoying force to protect them from the temptations of unprofessional behavior.
But this is not so with e-discovery. In this field, and this field alone, your technological incompetence has a direct, and very severe negative impact on your professional competence to do e-discovery work. The challenges of technology act as a countervailing force to legal competence as shown in the diagram below.
Since most attorneys today called upon to try to do e-discovery have very limited technology competence, they necessarily also have limited legal competence to do this work. Thus the buoying force of competence is far less, or absent entirely, to restrain excessive advocacy. Instead, the added challenges of technology serve as an anchor to bring out the basest behaviors. As shown in the diagram below, with the added weight of technological challenges, the upward forces of legal competence and duty to profession are now insufficient to counter the temptations arising from duties to clients. The influence of technology greatly strengthens the downward forces and leads to an overall lowering of ethical conduct.
Attorneys not competent in technology are well aware of their situation, although they will often go to great lengths to hide it from others. This creates a precarious situation where attorneys are not comforted by legal competence, but are still pressured by clients and the economy. This leads many to make bad decisions and choices when it comes to compliance with the dictates of model Rules 3.2 Expediting Litigation, 3.3 Candor Toward the Tribunal, and 3.4 Fairness to Opposing Party and Counsel.
Finally, it is important to note that no one is fully competent in all fields of technology that may be encountered in e-discovery. It might be possible for complete competence in the legal side of e-discovery. A few may master all aspects of the many laws and rules impacting e-discovery. But no one has complete mastery of all of the software and hardware systems involved. Every modern lawyer is stressed and challenged by the enormous tidal wave of technology we have “enjoyed” in the past few decades. Each attorney is a perpetual student, who must strive to keep abreast of the rapid inventions and progress of the unstoppable tidal wave of technological evolution.
The Wicked Quadrants
The four factors shown below and at the beginning of this blog constitute the basic components underlying unethical behavior in e-discovery. The diagram below adjusts the size of the four quadrants to reflect the imbalance that leads to lawyer misconduct.
In the field of e-discovery I place most of the blame on the incredible challenges of technology. No other generation of lawyers in history has ever faced this kind of rapid change. It is no wonder that it has shifted the delicate balance otherwise in effect between the competing forces of client satisfaction, competence and professionalism. Technology challenges have undercut and weakened legal competence, which in turn has strengthened some lawyers perceived duties to clients at the expense of duties to the profession. Attorneys who succumb to unethical behavior in e-discovery do so because they give far greater weight to the financially rewarded duties-to-client over the countervailing duties-to-profession, duties intended to act as restraints upon excessive advocacy.
This represents a situation of excessive adversarial practice not adequately tempered by duties to the profession or by legal competence. Instead, overly high levels of technology challenges aggravate the imbalance. This common situation today explains the high incidence of lawyer misconduct in e-discovery.
This analytical rubric suggests a remedy to the problem it illustrates. Lawyers need more legal training in e-discovery and in technology. The professional advocacy restraints to excessive zeal must also be strengthened and better understood. Lawyers must come to understand that they have a sacred duty to expedite litigation, have candor to the judge, and be truthful and fair to the opposing party and opposing counsel. These things are more important than money. They are at the very core of our profession. They separate the Law from mere business. They justify the powers entrusted in our profession since the days of the founding Fathers.
Integrity and the abhorrence of unethical conduct cannot be forced by the enactment of more rules. Only better education and the strict enforcement of our current rules will get us there. This enforcement requires much greater energy and attention to these issues by both the state bar associations and the judges who are often sad witness to such misbehavior. All too often such misconduct is tolerated. In the rare occasions where disciplinary actions are taken, or sanctions are imposed, they are far too weak to deter similar conduct by the rest of the bar. The Qualcomm case provides a perfect example of this situation. Although the court spends hundreds of pages in multiple decisions describing the misconduct of Qualcomm’s attorneys, including direct lies to the judge in the midst of a trail, to date, no attorney or law firm involved has been sanctioned. Further, although there have been threats to refer the attorneys to the California Bar for disciplinary action, as of yet, this has not happened.