As e-discovery evolves and new legal technology emerges, practitioners need to invest in continued learning to maintain competence in the field and compliance with ethical standards. To help you stay current on case law, tools and rules impacting e-discovery and keep up with ethics standards, LegalTech New York (LTNY), is providing excellent educational tracks, including an opportunity to earn 5.5 units of ethics credit.
Ethics, generally, is a set of rules for “right conduct” or a system of moral principles. What determines the “rightness” or “wrongness” of certain actions (or inactions) and the motives for such actions? The answers to such questions are not absolute; rather, ethical behavior is often defined in the context of a particular community, such as academia or the media or the legal profession.
In the legal profession, where lawyers have a special responsibility to the quality of justice, ethical conduct has been a concern for a long time. More than 100 years ago, the American Bar Association (ABA) adopted the original Canons of Professional Ethics, and since then has provided leadership in ethics and professional responsibility through a set of standards that provide guidance to legal professionals. Today, conduct in the legal field is mainly governed by the ABA’s Model Rules of Professional Conduct (MRPC).
MRPC 1.1 sets the stage for expected behavior: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.” The level of e-discovery knowledge and skill required of attorneys depends on a variety of factors, but at the very least, a mastery of the basics is expected.
Ethics in e-discovery is getting more attention as migration from paper documents to digital files has given rise to unique issues related to the creation, storage and retention of information. Special topics of current relevance include the potential for overreliance on technology, the increasing number of non-lawyers performing discovery-related work (see MRPC 5.5), the migration of data to the cloud and social media.
Knowing right from wrong, even in this technology-saturated age, seems like common sense. In practice, however, common sense can be in the eye of the beholder. Ethical violations, whether they are innocent mistakes or intentional misconduct, are more common in our industry than we may want to admit.
Directing your client to remove potentially damaging photos from a Facebook page during trial seems like a pretty obvious ethical lapse, but the ethical implications of having your paralegal “friend” someone to gain access to information otherwise not available in your quest for evidence may be less clear to some practitioners. Many of the trickiest ethical conundrums that arise in e-discovery practice reflect ongoing uncertainty about what exactly constitutes core legal/ethical concepts like “competence” and “cooperation.”
How much diligence is enough for you to be considered responsible in dealing with ESI issues? How involved must you get with your client when making inquiries about what information they have? How deep must you go? For example, relying on your client’s characterization of the data simply because you don’t understand their information architecture may cause ethical problems down the road. Something may clearly be discoverable, but perhaps you did not exert enough effort. Many attorneys may unknowingly be committing ethical breaches because they don’t know what they don’t know.
Avoid costly mistakes. Keep up with technology, know the rules and consider hiring e-discovery counsel. Find out more by attending “Top Five Ethical Concerns for Lawyers in eDiscovery” on opening day at LTNY, immediately following the keynote by Microsoft’s John Frank (VP, Deputy GC) on ethical business in a global economy. Both programs offer ethics CLE credit.
Be sure to stop by the Fios booth # 313 and say hello. Enjoy the show!
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