Lawyers have professional responsibilities as they relate to electronically stored information

The ABA recently released new model rules on competence and confidentiality

The American Bar Association (ABA) recently updated its Model Rules of Professional Conduct in a way that many lawyers will view with great fear and loathing. In a nutshell, the effect of the update is to require lawyers to keep abreast of changing technology that impacts the practice of law. Given that many lawyers quip that they went to law school precisely to avoid such technical matters, the new comment to Rule 1.1 could cause real consternation at the bar.

The new Comment [8] expresses a sentiment that has been discussed in parallel with the rise of e-discovery. Judges and lawyers have repeatedly called attention to the implications the importance of e-discovery has for the duty of competence and confidentiality. Confidentiality has already been the subject of many ethical opinions in the context of disclosure and discovery of metadata. It has also been addressed in the context of the inadvertent disclosure of privileged material, through amendments to the Federal Rules of Civil Procedure as well as the Federal Rules of Evidence. However, the duty of competence has until now not received commensurate attention.

This does not suggest that lawyers need to become experts on Microsoft Exchange or DLT backup tapes or any other system or storage media. However, the competent lawyer will develop an awareness of facts about those systems and sources that bear on preserving their relevant data. This may simply mean that lawyers have to be inquisitive enough to ask questions of the client’s IT personnel, such as “where is the data?” or “what do we have to do in order to make sure the data does not get erased?”

Inside counsel who use multiple law firms to handle different kinds of litigations or investigations can make life easier by working with outside counsel and technical experts to create a “systems overview.” The systems overview is a document that identifies and describes each of the client’s potential sources of electronic information, including all of the facts related to preserving, searching, collecting and otherwise handling the information for purposes of e-discovery. Such a document provides an excellent starting point for discussions between attorneys and IT personnel regarding how to carry out e-discovery on the client’s data.

Contributing Author

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Adam Cohen

Adam Cohen is Managing Director at Berkley Research Group and a Certified Information Systems Security Professional (CISSP) and former practicing attorney who for more than 20 years...

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