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E t h i c a l I s s u e s f o r L i t i g a t i o n C o u n s e l : T h e C h a l l e n g e s o f
E l e c t r o n i c I n f o r m a t i o n
Melissa Hummel
Senior Manager, Discovery Practice May 18, 2017
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I N T R O D U C T I O N :
W h y d o e s
E l e c t r o n i c a l l y S t o r e d I n f o r m a t i o n ( E S I )
C r e a t e U n i q u e E t h i c a l
C h a l l e n g e s ?
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N e w m e t h o d s o f
c o m m u n i c a t i o n a n d i n t e r a c t i o n
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Vo l u m i n o u s , e p h e m e r a l n a t u r e o f
i n f o r m a t i o n a n d e v i d e n c e
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D i ffi c u l t y i n a c h i e v i n g
c o m p e t e n c e a n d a s s e s s i n g t h e c o m p e t e n c e o f o t h e r s
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E m e r g i n g , i n c o n s i s t e n t c a s e l a w a n d
e t h i c s o p i n i o n s , o r n o f o r m a l
g u i d a n c e a t a l l
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I n c r e a s e d u s e o f o u t s o u r c i n g
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AGENDA
- Key ABA Model Rules of Professional Conduct
- Accessing and Using Information with Emerging Technologies - Cooperating in Discovery
- Employing Sophisticated E-Discovery Software Tools and Processes
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A B A M O D E L R U L E S
O F P R O F E S S I O N A L
C O N D U C T
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The Lawyer as Counselor
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 1.3 (Diligence)
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.6 (Confidentiality of Information)
A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
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The Lawyer as Advocate
Rule 3.2 (Expediting Litigation)
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Rule 3.3 (Candor Towards the Tribunal)
A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law . . . or offer evidence that the lawyer knows to be false.
Rule 3.4 (Fairness to Opposing Party and Counsel)
A lawyer shall not unlawfully obstruct another party’s access to evidence. . . make a frivolous discovery request. . . or fail to make reasonably diligent effort to comply with a proper discovery request
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Law Firms and Associations of Lawyers
Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer)
A lawyer having di rect supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
Rule 5.3 (Responsibilities Regarding Non-Lawyer Assistants)
A lawyer having direct supervisory authority over [a] nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.
Rule 5.5 (Unauthorized Practice of Law)
A lawyer shall not practice law . . . in violation of the regulation of the legal profession . . . or assist another in doing so.
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A C C E S S I N G A N D U S I N G E S I W I T H E M E R G I N G
T E C H N O L O G I E S
A c c e s s i n g & U s i n g E S I
Ethical Implications:
• Maintaining competence
• Protecting confidential information
• Preserving the attorney-client privilege
ABA Model Rules:
• 1.1 (Competence)
• 1.6 (Confidentiality of Information)
M a i n t a i n i n g C o m p e t e n c e
2012 Amendment to ABA Model Rule 1.1 (Competence) specifically addressed the use of technology and its impact on legal practice—
The comments now state that, to provide competent representation, lawyers must:
“keep abreast of changes in the law and its practice,
including the benefits and risks associated with relevant
technologies.”
“keep abreast of changes in the law and its practice,
including the benefits and risks associated with relevant
technologies.”
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“Technological incompetence used to be merely a competitive disadvantage.
Now, it is a potential ethics violation—
or even legal malpractice.”
Megan Zavieh, Luddite Lawyers Are Ethical Violations Waiting To Happen https://lawyerist.com/71071/luddite-lawyers-ethical- violations-waiting-happen/
“Technological incompetence used to be merely a competitive disadvantage.
Now, it is a potential ethics violation—
or even legal malpractice.”
Megan Zavieh, Luddite Lawyers Are Ethical Violations Waiting To Happen https://lawyerist.com/71071/luddite-lawyers-ethical- violations-waiting-happen/
M a i n t a i n i n g C o m p e t e n c e
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A B A L e g a l Te c h n o l o g y R e s o u r c e C e n t e r
h t t p : / / w w w . a m e r i c a n b a r . o r g / g r o u p s / d e p a r t m e n t s _ o ffi c e s / l e g a l _ t e c h n o l o g y _ r e s o u r c e s . h t m l
M a i n t a i n i n g C o m p e t e n c e
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P r o t e c t i n g C o n fi d e n t i a l i t y & P r i v i l e g e
P r o t e c t i n g C o n fi d e n t i a l i t y & P r i v i l e g e
What are “reasonable efforts” to protect client data?
Factors to consider:
• The sensitivity of the information
• The likelihood of disclosure if additional safeguards are not employed
• The cost of employing additional safeguards
• The difficulty of implementing the safeguards
• The extent to which the safeguards adversely affect the
lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use)
P r o t e c t i n g C o n fi d e n t i a l i t y & P r i v i l e g e
Using Public WiFi—
Helpful Advice to Maintain Information Security:
“Put simply, you are not living up to your ethical
obligations to a client if you are exposing their data to public wi-fi.”
Lisa Needham, Beware Public Wi-Fi When Accessing Client Information
https://lawyerist.com/79570/public-wifi-not-safe-period/
“Put simply, you are not living up to your ethical
obligations to a client if you are exposing their data to public wi-fi.”
Lisa Needham, Beware Public Wi-Fi When Accessing Client Information
https://lawyerist.com/79570/public-wifi-not-safe-period/
P r o t e c t i n g C o n fi d e n t i a l i t y & P r i v i l e g e
“Our Services also provide you with features like photo thumbnails, document previews, email organization, easy sorting, editing, sharing and searching. These and other features may require our systems to access, store and scan Your Stuff. You give us permission to do those things, and this permission extends to trusted third parties we work with.”
“Our Services also provide you with features like photo thumbnails, document previews, email organization, easy sorting, editing, sharing and searching. These and other features may require our systems to access, store and scan Your Stuff. You give us permission to do those things, and this permission extends to trusted third parties we work with.”
Storing Information in the Cloud—
Dropbox Terms of Service (November 24, 2015)
P r o t e c t i n g C o n fi d e n t i a l i t y & P r i v i l e g e
Storing Information in the Cloud—
Advice from State Bars?
• So far, twenty states have weighed in on the question of how to use cloud computing (or other new technologies for storing and transmitting information) within the bounds of ethical rules.
• The opinions primarily focus on striking an appropriate balance between risks and benefits, and taking reasonable steps to ensure that client files remain secure.
• The ABA maintains a repository of cloud computing ethics opinions around the US:
http://www.americanbar.org/groups/departments_offices/legal_technology_resources/
resources/charts_fyis/cloud-ethics- chart.html
P r o t e c t i n g C o n fi d e n t i a l i t y & P r i v i l e g e
Storing Information in the Cloud—
Questions for Cloud/Third-Party Providers
• Does the provider acknowledge that you own the information?
• Does the provider's Terms of Service include the provider's commitment to confidential handling of the data?
• Can the provider review the content of information stored with the provider? If so, for what reasons?
It may be one thing for a provider to look at information for the purpose of providing the storage or communication service. A court may look at it differently if the provider is mining your confidential information for other purposes.
• Is the information so sensitive that it should not be stored with a third party at all (or without additional security steps like encryption)?
• Where is the information stored? If outside the U.S., is it a country whose laws concerning data ownership and privacy are at least as protective as the U.S.?
• What are the legal ramifications of third-party interception of the information? Actions are more likely to be considered reasonable when interception or disclosure is illegal.
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C O O P E R AT I N G I N
D I S C O V E RY
C o o p e r a t i n g i n D i s c o v e r y
Ethical Implications:
• Diligent and zealous advocacy v. cooperation and transparency
• Duty to protect confidential information v. fairness and candor ABA Model Rules:
• Preamble Para. [2]
• 1.1 (Competence)
• 1.3 (Diligence)
• 1.6 (Confidentiality of Information)
• 3.2 (Expediting Litigation)
• 3.3 (Candor Towards the Tribunal)
C o o p e r a t i n g i n D i s c o v e r y
Rule 1, Federal Rules of Civil Procedure, Advisory Committee Note—
“Effective advocacy is consistent with—and indeed depends upon
—cooperative and proportional use of procedure.”
“Effective advocacy is consistent with—and indeed depends upon
—cooperative and proportional use of procedure.”
C o o p e r a t i n g i n D i s c o v e r y
The Case for Cooperation,
10 Sedona Conf. J. 339 (2009 Supp.)—
“If parties are expected to continue to manage
discovery in the manner envisioned by the Federal Rules of Civil Procedure, cooperation will be
necessary. Without such cooperation, discovery will become too expensive and time consuming for
parties to effectively litigate their disputes.”
“If parties are expected to continue to manage
discovery in the manner envisioned by the Federal Rules of Civil Procedure, cooperation will be
necessary. Without such cooperation, discovery will become too expensive and time consuming for
parties to effectively litigate their disputes.”
C o o p e r a t i n g i n D i s c o v e r y
The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363 (2009 Supp.)—
“The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a means for
advancing their clients’ interests and not as a retreat from their duties as loyal advocates. . . [T]he lawyers who
default to battle mode in discovery – who fail even to consider whether cooperation might yield better results – are the ones who truly fail to serve their clients’ interests.”
“The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a means for
advancing their clients’ interests and not as a retreat from their duties as loyal advocates. . . [T]he lawyers who
default to battle mode in discovery – who fail even to consider whether cooperation might yield better results – are the ones who truly fail to serve their clients’ interests.”
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E m p l o y i n g E - D i s c o v e r y To o l s &
P r o c e s s e s
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E m p l o y i n g E - D i s c o v e r y To o l s &
P r o c e s s e s
E m p l o y i n g E - D i s c o v e r y To o l s &
P r o c e s s e s
Ethical Implications:
• Meeting the duty of competence in the use of these tools
• Using the right tools efficiently, and cost-effectively
• Disclosing the use of e-discovery tools ABA Model Rules:
• 1.1 (Competence)
• 1.3 (Diligence)
• 1.6 (Confidentiality of Information)
• 3.2 (Expediting Litigation)
• 3.3 (Candor Towards the Tribunal)
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H A N D L I N G H I G H -
V O L U M E D O C U M E N T
D I S C O V E RY
Ethical Implications:
• Protecting confidential and privileged information
• Adequately supervising document review and other outsourced work, while not facilitating the unauthorized practice of law
• ABA Model Rules:
• 1.6 (Confidentiality of Information)
• 3.2 (Expediting Litigation)
• 5.1 (Responsibilities of a Partner or Supervisory Lawyer)
• 5.3 (Responsibilities Regarding Nonlawyer Assistants)
• 5.5 (Unauthorized Practice of Law)
