It’s a long-established principle that ignorance of the law is no excuse—and today, neither is ignorance of technology. Twenty-first-century e-discovery competence requires a general understanding of electronically stored information (ESI), plus knowledge of a client's specific systems, the FRCP requirements related to ESI, and changes in technology and law.
While the reality of a tech-savvy lawyer population is still far off, the idea is not new. Its importance came to the fore in 2012, when the American Bar Association formally approved a groundbreaking change to the Model Rules of Professional Conduct.
Model Rule 3.4 states that a lawyer must provide “competent representation,” including the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In 2012, the ABA amended its comments to the Model Rule to state that: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”
The Model Rules also state that a “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” In practice, this means that, to avoid spoliation claims, an attorney needs to fully understand the client’s data. This includes the email and network infrastructure, document retention and destruction practices, and sources of all potentially relevant data. Lawyers must be able to represent with candor and proficiency the entire process of identification, preservation, collection, processing, review and production in any given case.
While the Model Rules offer guidance, they are not strictly binding. Each state must decide its own rules. To date, 38 states have adopted the Model Rules or a version of them.
In some cases, states are outpacing the Model Rules. For example, Florida requires that its lawyers complete three hours of CLE every three years “in approved technology programs.” The Florida Supreme Court has noted that providing competent legal representation may involve safeguarding electronic transmission and communications, as well as consulting with technology advisers. The court suggested that, “to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”
While California does not have specific technology rules, the state has issued an ethics opinion addressing the question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” According to the opinion, baseline litigation competence requires a fundamental understanding of, and facility with, e-discovery issues. In some cases, the duty of competence may require a higher level of technical ability, depending on the e-discovery issues and ESI involved. An attorney lacking the required competence may either: (1) acquire sufficient learning and skill; (2) associate with or retain technical consultants or competent counsel; or (3) decline the client representation.
To sum up, technology competence has become a key component of legal competence. In order to comply with ethical and legal requirements, lawyers must either develop that competence or collaborate with someone who has it. Failure to do so may open the door to court-imposed sanctions and, in extreme cases, to malpractice suits.