Historically, the legal profession as a whole has been reluctant to embrace technology in the practice of law. However, following the lead of the American Bar Association's 2012 update to the Model Rules of Professional Conduct, 38 states have now expanded the attorney's duty of competence to encompass legal technology generally. This expansion has been complemented by a detailed opinion from the California Bar's committee on professional responsibility and conduct that specifies e-discovery competence as an obligation and defines specific factors, see Formal Opinion No. 2015-193 (June 30, 2015). While attorneys should now be on notice that they must have a baseline level of knowledge on legal technology, and e-discovery specifically, putting that knowledge to practical use may present challenges.

Model Rule of Professional Conduct 1.4 requires an attorney to "reasonably consult with the client about the means by which the client's objectives are to be accomplished" and "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Thus, as part of the foundational competence required under Rule 1.1 and analogous state rules, attorneys not only must be technically competent, but also must be able to communicate reasonably with their clients regarding discovery knowledge and techniques. Just because an attorney understands e-discovery sufficiently to meet the competence threshold and make reasonably strategic decisions does not necessarily mean that she can convey this understanding readily in a 'reasonable consultation' that enables the client to "make informed decisions regarding the representation" in accordance with Rule 1.4.

Communication pitfalls—e-discovery or otherwise—tend to fall into three major categories: not communicating enough; communicating too much; and communicating ineffectively, such as by improperly focusing on a single factor.

Insufficient Communication

Failing to take the time to explain e-discovery to the client—why it is important and what a reasonable process entails—is the first pitfall to avoid. Equipping the client with a base knowledge of discovery obligations is as much a part of the duty of communication as explaining the legal precedents for the substantive issues in the case. Further, providing the "why" to go with the "what" can increase cooperation. While providing a checklist of what the client needs to do is a form of communication, an interactive give-and-take where the client can actually come to understand the stakes and requirements is a better course, and may result in the client sharing information that will assist the attorney. Worse than the checklist approach, though, is an attorney who glosses over e-discovery obligations and process, even out of concern for a client's time or to spare him the minutiae of the EDRM. While shortcuts, like having a secretary forward relevant emails, may appear to make things "easier" at the initial discovery stages, it may ultimately come back in the form of additional data collections, specialist time to resolve issues, or worse, pushback from opposing counsel or an e-discovery-savvy judge. Explaining a motion to compel electronically-stored information is not the moment to first achieve effective communication with a client.

Excessive Communication

Paradox of choice is often discussed in the context of marketing and consumer behavior, but it can apply to the e-discovery market as much as to groceries or apparel; having too many options can make it difficult to make a satisfactory choice. As the e-discovery industry continues to expand, the available tools and resources for every step of the process expand with it.  Software is available for myriad case types at a variety of price points. Even if an attorney is able to keep abreast of all functionality on the market, presenting every available option may overwhelm a client. Each tool has its merits, and engaging in an item-by-item comparison of several offerings may not be worthwhile for a straightforward e-discovery project. A client that is not tech-savvy and hasn't dealt with e-discovery may be paralyzed by too many choices. This is a time that an attorney's expertise and clearly communicated recommendations may be most welcome.

A firm that has taken the time to investigate and select internal legal technology or process management solutions may be especially well-suited to presenting a limited set of options for client consideration. If the firm has researched and vetted the available options and selected a tool it believes will best serve its clients and employees, a strong argument can be made that presenting additional options—which may require additional time and expense to implement, while potentially reducing the value or efficiency of the work product—is unnecessary. This is predicated on the attorney's ability to determine that the internal solution brings value to the client's particular matter; if the matter and the tool are a poor match, the client should be informed and presented with other options. It can be helpful to consider e-discovery tools to be analogous to other enterprise-level solutions selected by an organization, such as which billing software or research service to use for firm business.

Inappropriate Emphasis

Communication about the effectiveness of an e-discovery software or approach centers around variations on three things: cost, quality and speed. Evaluating and balancing these factors can be challenging, never mind explaining the analysis to a client such that he can make an "informed decision." When faced with a cost-sensitive client, an attorney may focus on the cost of specific software options or tactics—or the client may do that on his own. While certain expenses (software licenses, hosting costs, etc.) may appear to be straightforward, an attorney must ensure she has the full scope of information regarding the costs and services and is able to communicate how these factors will interact and perform on a particular matter, such as how choosing a less robust software might end up being more costly by requiring more attorney or analyst time than a more capable software. For example, if Software A costs $5 less per gigabyte to load data, and $10 less to host that data than Software B, the costs can add up quickly and cause the client to prefer Software A. However, if Software B includes functionality that will ultimately save 25 hours of attorney time at $300 an hour over the course of the matter, even a purely cost-driven client will adjust his calculations. An attorney must be in a position to effectively evaluate and communicate nuances about costs, expenses and the impact to the matter at hand.

Matter-specific technology needs can present another area where knowing how to evaluate and articulate options and outcomes can be critical. Just because a client is aware of and interested in using a full-functionality e-discovery software suite, there may be circumstances where this is not the best choice. If, for example, initial case analysis indicates that the most probative materials will be found in files from an industry-specific project tracking program, and a specific document review/management platform will allow streamlined review and redaction of files of that particular type, that functionality should take priority over other useful features, even if those features had been effective on a prior matter.

Special Issues With Vendors

In the course of matters involving e-discovery, attorneys often are called upon to work extensively with vendors to accomplish certain tasks. The attorney's duty of effective communication extends to tasks assigned to the vendor. An attorney must be able to explain what tasks the vendor has been assigned and why, as well as be able to clearly convey to the client information provided by the vendor as necessary.

By design and ethical necessity, in most situations these vendors are not practicing law; they provide technology, project management and related services. As such, vendors require supervision under Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistance). This obligation underscores the minimum knowledge and communication standards put forth in Rules 1.1 and 1.4. An attorney must be able to understand a vendor's capabilities and what they are being asked to do, to effectively communicate matter and project requirements, and to transmit necessary knowledge between the vendor and the client. Even in situations where the client and vendor interact directly, the attorney must maintain awareness of the situation, because she is the one responsible for supervising the legal work of the vendors.

To date, much of the ethics attention related to e-discovery has focused on the duty of competence. While baseline competence is a worthy and necessary goal, an attorney must surpass that in order to fully meet her other ethical obligations. Common sense suggests that, no matter how theoretically competent an attorney, if she is unable to express her understanding appropriately to her client, or effectively communicate instructions to parties engaged on a matter, the practical effects of competence are diminished. This is no less true for e-discovery than for any other area of law. Attorneys must remember that their understanding of a topic and their ability to communicate effectively on that topic are intertwined both practically and ethically.

Courtney A. Murphy is an attorney at Clark Hill with 10 years of experience in the ever-evolving e-discovery space. She has a deep interest in educating fellow attorneys on e-discovery topics, specifically bridging the communication gaps that open up between attorneys, clients, IT professionals and other stakeholders. She is an e-discovery attorney, where she provides advice to colleagues and clients on navigating the ins and outs of e-discovery, administers various applications and software, and generally wrangles ESI on a daily basis.