3 Responses to The Nine Tasks the California Bar Says an Attorney Must Know to be Competent in e-Discovery

  1. Ralph Artigliere says:

    Ralph,
    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.

    Ralph Artigliere

    • Ralph Losey says:

      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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