The California Bar issued an important ethics ruling in mid-2016 that all lawyers should know about. The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 (final version August 2016). The key component of the Opinion is the list of nine tasks that an attorney should either be able to do, or, if they cannot, to associate with other legal counsel who does. Below is the language from the Opinion that describes these tasks followed my video explanation of the knowledge required to competently perform them. The video is divided into four parts with some intentional overlap for emphasis.
Just a few years ago this kind of knowledge was considered arcane and was only known by e-discovery specialists. Now the California Bar has taken a bold leap forward to make this knowledge required for all attorneys who litigate in California. The California Bar has thus raised the bar of competence for everyone by making this an ethical imperative in their state. Note, that as footnote seven to the Opinion makes clear, this is not intended to be an exhaustive list. For instance, attorneys must also know how to properly obtain an opposing party’s ESI.
This development is so important that I have also added these videos to the TAR Course, class one of sixteen, and to the eighty-five class e-Discovery Team Training course in Module 1-N, which is now entitled Ken Withers on Discovery and Cooperation, the Sedona Cooperation Proclamation, and the California Bar Ethics Opinion Setting Forth Nine Minimum e-Discovery Skills That All Attorneys Should Know.
California Formal Opinion on Ethics No. 2015-193 (final version August 2016), at pages 3-4:
Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
1. Initially assess e-discovery needs and issues, if any;
2. Implement/cause to implement appropriate ESI preservation procedures;
3. Analyze and understand a client’s ESI systems and storage;
4. Advise the client on available options for collection and preservation of ESI;
5. Identify custodians of potentially relevant ESI;
6. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
7. Perform data searches;
8. Collect responsive ESI in a manner that preserves the integrity of that ESI; and
9. Produce responsive non-privileged ESI in a recognized and appropriate manner. FN7
FN 7 – This opinion focuses on an attorney’s ethical obligations relating to his own client’s ESI and, therefore, this list focuses on those issues. This opinion does not address the scope of an attorney’s duty of competence relating to obtaining an opposing party’s ESI.
California is now leading the charge in pushing for e-discovery competence. It may be a while before other state Bar associations are bold enough to follow suit, but eventually they will. In the meantime California lawyers have the same challenges of competence as the rest of the country, but for them, it is now an ethical imperative. It will be interesting to see if this opinion has the intended effect and raises the competency bar of all litigating attorneys in California. Alternatively, it could significantly increase the consulting and co-counsel work of e-discovery lawyer specialists. It will probably be a combination of both, but I suspect the greatest impact will be in boosting the specialty. Those who can easily pole vault over the new standards may soon have more work than they can handle.
This topic has been of immense interest to me because it is a rather extreme measure for state bar associations to tell lawyers specifically how to practice rather than the general admonition that they must have sufficient competence in matters they take up or engage the help of someone who does. Giving lawyers a specific roadmap on how to practice is not the routine role of ethical opinions because most ethical opinions are narrow and case-specific. California is not the only state going this route. One example (of many) is Florida’s Ethical Opinion 14-1 telling lawyers in some detail what is required step by step with alternative facts with regard to handling a client with existing social media posts at the outset of the case (an express response to the Lester v. Allied Concrete wrongful death case in Virginia in which a lawyer and client were fined severely and the lawyer lost his license for telling the client to take down a Facebook page with unflattering evidence on it after it was requested by the other side). The fact is, this reaction by state bar associations (and the ABA) regarding e-Discovery guidance was brought on by the fact that most lawyers have avoided, ignored, or run from the obligations to attain even minimal standards of competence in technology, e-Discovery, and admissibility of digital evidence. This is quite remarkable when the signal responsibility of a lawyer is finding and applying relevant facts to legal problems and almost all facts now are not created and exchanged on paper. I know you have been ringing the warning bell for years about this. I assume the opinions establish the standard of care for those taking on such cases, so it should be fair warning.
Thanks for your contribution to education of legal professionals with your new program.
Thanks for that comment Ralph. As usual, you bring a unique strong perspective. I had not thought about the California action that way before, but of course you are right. Plus, I admit, I had not heard of the Florida ethics opinion. I urge you to write in more detail on this general subject of competence and e-discovery. I for one would be happy to publish any such article here as a guest blog. And sorry re the delay in “approving” your comment. Go Team Ralph!
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