The pervasiveness of technology in our everyday lives is unmistakable. The next time you walk down a city street, go out for coffee or spend time at a family gathering, take a moment, and reflect upon the number of people on their mobile devices – it is astonishing! At this moment, you may be asking yourself, how is this relevant to ethical eDiscovery – so let me explain.
In litigation there may be electronically stored information (“ESI”) that needs to be preserved, collected, processed and reviewed (collectively “eDiscovery”). ESI can take the form of emails, servers, hard drives, mobile devices, such as cell phones, among others.
So, if a lawyer finds themselves retained for a matter that involves eDiscovery, how do they meet their ethical obligations under the New York Rules of Professional Conduct (hereinafter “Rules”).1 Well let us start with the Rules.
In evaluating the Rules, it is important to note a few things first. Only the black letter Rules are binding upon lawyers – the Comments accompanying the Rules are not binding upon lawyers and serve as a guide to interpreting the Rules – the Preamble and Scope of the Rules are also non-binding upon lawyers and serve as a guide to interpreting the Rules.2
The most salient black letter Rule as it relates to ethical eDiscovery is Rule 1.1, “Competence.” In relevant part it states, “(a) [a] lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who competent to handle it.3” Comment , which accompanies this Rule states, “[t]o maintain the requisite knowledge and skill, a lawyer should … (ii) keep abreast of the benefits and risks associated with the technology the lawyer uses to provide services to clients or to store or transit confidential information.” (emphasis added).
In 2014, the New York State Bar Association issued an ethical opinion that discussed the interplay between technology and the Rules – specifically, ESI in the cloud under Rule 1.6 Confidentiality of Information and Rule 1.1 Competence.4 And in 2013, another ethical opinion discussed Rule 1.1 Competency as it relates to social media and preservation of evidence.5 Both opinions providing support for the importance of competency as it relates to eDiscovery.
Accordingly, lawyers should to familiarize themselves with technology and maintain a level of technological competence to adequately advise clients on eDiscovery. Moreover and as a helpful tip, knowing the right questions to ask of your client, vendors and opposing counsel, may be the best way to maintain competence.6
Where a lawyer lacks the requisite competency to handle eDiscovery there are three options to ethically handle the matter – (1) adequately informing themselves about eDiscovery to meet the standards of an competent lawyer7; (2) associate with a lawyer who possess the requisite eDiscovery competence8 or (3) associate with a nonlawyer9 who possesses the requisite eDiscovery competence.10 Alternatively, the lawyer should decline the representation.
Where a lawyer does associate with a nonlawyer to meet the standards of a competent lawyer, the lawyer must adequately supervise the nonlawyer to ensure the actions of nonlawyers comport with the Rules.11 Failure to adequately supervise can lead to disciplinary action.12
State and Federal Rules
In addition to the Rules, lawyers should be cognizant of the New York State and Federal Rules, which establish competency in the eDiscovery context.
The Uniform Civil Rules for the New York Supreme Court and the Commercial Division of the New York Supreme Court, with respect to the preliminary conference, require lawyers to be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery.13 Consequently, lack of discovery competency can result in sanctions.14
The Federal Rules of Civil Procedure, Rule 26(f)(c)(3), with respect to the discovery plan, requires lawyers to state the views and proposals on issues about disclosure, discovery or preservation of ESI, including production format. And under Rule 26(g)(1), the lawyer of record must sign to certify that the disclosure and discovery comports with the Rule itself; failure to do so can result in sanctions under Rule 26(g)(3).
Accordingly, for a lawyer to comply with the Court Rules, they must be sufficiently well-versed in eDiscovery.
Legal Malpractice and Disciplinary Action
When looking at the Rules it is important to delineate between legal malpractice and a disciplinary action.
To state of cause of action for legal malpractice requires that the (1) lawyer failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) lawyer’s breach of the duty proximately caused the plaintiff actual and ascertainable damages.15 Consequently, a violation of a disciplinary rule without more, is insufficient to support a legal malpractice cause of action.16 And a violation of the Rules does not form the basis for a legal malpractice cause of action, but some of the conduct constituting a violation of the Rules, may also constitute evidence of malpractice.17
The Rules provide a framework for the ethical practice of law.18 Moreover, the Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.19 And the failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process.20
In closing, I wanted to provide helpful tips to assist lawyers in meeting their ethical obligations under the Rules.
A lawyer and litigation support professional should start communicating upon commencement of the matter. They should discuss the merits of the matter and come up with an eDiscovery strategy to meet case goals.21
Transparent and clear communications are the keys to a successful eDiscovery engagement – communications should include:
- Discovery deadlines
- ESI protocols
- How and what format should the ESI be collected
- What format should the ESI be produced
- What metadata fields should we agree to produce
- What metadata fields should we avoid committing to produce
- Is a forensic consultant needed
- Document Review
- What is the best method to review documents given the nature of the matter, budget and time constraints
- linear review or technology assisted review (TAR)
- use of analytics – email threading and near deduplication
1. The Rules, also known as, disciplinary rules.
2. See New York Rules of Professional Conduct (N.Y. Rule) Preamble; Scope ; Roy Simon & Nicole Hyland, Simon’s New York Rules of Professional Conduct Annotated, 2017 ed. 2 (2017).
3. Unlike ABA Model Rule 1.1, its progeny the N.Y. Rule 1.1(a) uses the word “should” instead of “shall”. Accordingly, the language does not mandate competent representation, but rather, competence is merely aspirational. The rationale for the “should” language is twofold – (1) every lawyer makes mistakes and a lawyer should not be subject to professional discipline for an isolated instance of incompetence; and (2) incompetence is largely policed by legal malpractice suits. Simon & Hyland, supra, at 62 – 63. However, N.Y. Rule 1.1 (b) “puts teeth in the duty of competence by essentially prohibiting incompetent representation.” Simon, Roy, Artificial Intelligence, Real Ethics, New York State Bar Association Journal, April 2018, par. 5.
4. New York State Bar Association, Ethics Opinion 1020; see Simon, Artificial Intelligence, supra, pars. 11-13 (discussing technology as it relates to N.Y. Rule 1.6, confidential information).
5. New York County Lawyers’ Association, Ethics Opinion 745.
6. See Kristen Weil & Ronald Hedges, Ethical E-Discovery and New Technologies, New York Law Journal, March 2017.
7. See Y. Rule Comment 1.1  – , .
8. See N.Y. Rule 1.1 (b); N.Y. Rule Comment 1.1 .
9. Examples of nonlawyer eDiscovery professionals include, project managers, litigation support, eDiscovery vendors, forensic engineers, among others.
10. See Y. Rule 5.3.
11. See Y. Rule Comment 5.3  – .
12. See Matter of Jeffrey M. Jayson, 3 A.D.3d 80, 81-2, 772 N.Y.S.2d 769, 770-71 (N.Y. App. Div. 2003)
13. See 22 NYCRR 202.12(b); 22 NYCRR 202.70(g)(1)(b).
14. See Ocwen Loan Servicing v. Ohio Pub. Emps. Ret. Sys., 2015 NY Slip Op. 51775(U) (N.Y. Sup. Ct. Dec. 7, 2015) (Plaintiff sought spoliation sanctions pursuant to CPLR 3216, claiming that Defendant failed to preserve relevant electronically stored information. The Court granted Plaintiff’s motion insofar as Plaintiff requests an adverse inference instruction and further ordered Defendant pay the lawyers’ fees and costs incurred by Plaintiff in preparing the sanctions motion).
15. See Felix v. Klee & Woolf, LLP, 138 A.D.3d 920, 921, 30 N.Y.S.3d 220, 223 (N.Y. App. Div. 2016).
16. See Fletcher v. Boies, Schiller & Flexner LLP, 140 A.D.3d 587, 588, 35 N.Y.S.3d 28 (N.Y. App. Div. 2016).
17. See Swift v. Choe, 242 A.D.2d 188, 194, 674 N.Y.S.2d 17, 21 (N.Y. App. Div. 1998); N.Y. Rule Preamble; Scope .
18. Y. Rule Preamble; Scope .
19. Y. Rule Preamble; Scope .
20. Y. Rule Preamble; Scope .
21. A good starting point is the EDRM Project Management Framework. See edrm.net/frameworks-and-standards/edrm-model/project-management/