By Steve Homan, Consultant, KPO Consultants and Rahul Jain, Vice President, KPO Consultants

Technology has changed the way we practice law. Searching databases support faster research, banks help us share the work product, and document management systems help to organize our cases. Many of these tools help us work more efficiently and with greater organization. Lawyers may choose to use these technologies as they see fit.

However, in the field of electronic discovery, which is inherently tied to technology, not using available technology limits the ability of counsel to represent the interests of a client. In the era of electronic information, it is literally impossible to produce all relevant information without the use of some information technology. Therefore, the question arises whether some minimum technology standards apply to lawyers practicing in this area.

Ethical Obligations

ABA Model Rule of Professional Conduct requires that lawyers provide competent representation to a client. Competent representation requires the legal knowledge, skill, and thoroughness to prepare reasonably well for representation.

There are very few cases or ethics opinions that discuss the application of this rule in the context of technology. However, one can argue that the "reasonableness" requires trial attorneys to keep abreast of technological advances applied to electronic detection. In fact, the American Bar Association website states that "competition in the use of a technology may be a requirement to practice law. Requirements for technological know-how may appear as part of the rules of professional conduct, continuing legal education (CLE) programs and credit insurance premiums.

The statement cites the ABA Bar of Alberta, which has created a subcommittee on Ethics and new technology to tie its Code of Professional Conduct for particular areas of technology, noting that a publication entitled "Technology and the duty of competence" addresses the suggestion that the "competition required maintaining and improving the knowledge and skills." The Subcommittee of Alberta, "suggests that this requirement includes the domain of technology, especially in areas directly related to the lawyer practice.”

Although no published ethics opinion in the U.S. appears to have addressed this issue, in the context of malpractice and in analyzing ineffective assistance of counsel, which both contain a reasonableness standard, courts have recognized that as technology changes, a lawyer's obligations may change as well. For example, in McNamara v. United States, plaintiff claimed that his counsel was ineffective because counsel did not stay current on the law. The issue was "whether, in this environment, it is outside the wide range of reasonable conduct for a lawyer to fail to utilize some method of keeping up with changes in the law." Although the district court decision was ultimately reversed and remanded, the lower court stated that:

“One consequence of this modern environment and of dramatic advancements in technology is the advent of extensive resources for staying abreast of developments in the law. Numerous legal newspapers, periodicals such as United States Law Week, and online services serve this important purpose. In reviewing the advancements in technology from 1975 versus 1994, the court also stated that: ‘The accessibility of up-to-date legal information at that time was not comparable to its availability today. As technology and resources develop, the minimum knowledge and preparation required of lawyers develops as well.’”

Similarly, in the case of Smith v. Lewis, the court recognized that an attorney assumes an obligation to make reasonable inquiries in an effort to determine the relevant legal principles. Although a lawyer is free to strategies as he or she sees fit, the court held that "there is nothing strategic about ignorance."

E-Discovery Considerations

Unlike online research or other assistive technology, e-discovery requires the use of technology. For example, only through information technology can a client computer’s backup tapes be restored. While it is true that electronic documents can be printed from a computer and produced in this way, as the courts increasingly consider the production of metadata, document printing can no longer be an option.

The issue of metadata poses additional technical challenges. Once the electronic information and its metadata has been collected, explored and reviewed, the data can only be absorbed intellectually through the use of technology. Lawyers who do not know how to check the metadata could leave their clients open to risks such as inadvertent production of privileged material.

Although, as the court in Smith v. Lewis acknowledged, lawyers are free to make strategy calls as they see fit; counsel should at least be aware of the options available to them and their clients when it comes to e-discovery. On the other hand, they must be willing to obtain technical assistance on or off as needed. The recent case of Coleman (Parent) Holdings v. Morgan Stanley further highlights the potential liability of e-discovery. In that case, the court required that a third-party e-discovery provider verify compliance with an agreed order.

Technology will change what is reasonable in the practice of law. Litigation lawyers will have to make sure they have knowledge of technology has made changes to the arena of discovery, so you can advise their clients and ensure that they have provided all the information required in the discovery process.