What California’s e-discovery ethics opinion means for in-house counsel

Examining what steps in-house counsel can take to protect the client’s interests in the scenario outlined by the California State Bar

Much has been written regarding a lawyer’s duty of competence in the digital age since the release of revised comment 8 to ABA Model Rule 1.1 nearly two years ago. That comment requires a lawyer to understand “the benefits and risks associated with relevant technology” as part of its overall duty to “keep abreast of changes in the law and its practice.” The relevant technological topics have largely focused on e-discovery and have been primarily directed to outside counsel.

Of particular interest is the draft ethics opinion that the California State Bar recently published regarding the impact of e-discovery on a lawyer’s duty of competence. That opinion generally focuses on the steps that outside counsel should take to competently deal with e-discovery. An overlooked though equally important question raised in connection with the opinion is the nature of in-house counsel’s ethical duties on these very same technological issues.

Contributing Author

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Philip Favro

Philip Favro brings over fourteen years of expertise to his position as Senior Discovery Counsel for Recommind, Inc. Phil is an industry thought leader, a...

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