Attorney Obligations in the Face of Rapidly Changing Technology

The California State Bar recently issued a final opinion weighing in on the question of an attorney’s ethical duties in handling the discovery of electronically stored information. In its Formal Opinion No. 2015-193, the State Bar of California Standing Committee on Professional Responsibility and Conduct summarized:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

In this opinion, which is advisory in nature, California goes further in outlining the ethical obligations of attorneys than the ABA Model Rule 1.1, which provides in the comments to that rule that an attorney “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” California’s Formal Opinion No. 2015-93 also addresses the duty of competence, failure to supervise, and the duty of confidentiality. 

The opinion highlights the challenges for attorneys in the face of rapidly changing technology, and serves as a clarion call for attorneys everywhere: “Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.”