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E-Discovery

California is leading the way in requiring e-discovery “competence” on the part of lawyers, even when they retain third-party experts. The State Bar of California recently issued Formal Opinion No. 2015-193, which addresses attorneys' ethical duties in the handling of discovery of electronically stored information, or ESI.

In December 2014, the state bar's Commission for the Revision of the Rules of Professional Conduct issued a proposed ethics opinion (Proposed Formal Opinion Interim No. 11-0004), which required attorneys who represent clients in litigation to be competent in the area of e-discovery or associate with others who have sufficient knowledge. The commission studied the current Rules of Professional Conduct and proposed comprehensive amendments for the state bar's board of trustees to consider.

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The Ethical Duty of Competence in E-Discovery

Proposed Formal Opinion Interim No. 11-0004 was the second revision of this opinion. The revised opinion addressed an attorney's ethical duties regarding competence and client confidentiality. It was a scaled-back version of the original, and added an extended discussion of the obligation to supervise subordinate attorneys' and non-attorneys' work, including clients' IT staff and e-discovery vendors.

The revised opinion referenced the American Bar Association's 2012 amendment to the Model Rules of Professional Conduct regarding the duty of lawyers to keep abreast of changes in the law, “including the benefits and risks associated with relevant technology.” Rule 3-110 C. The opinion identified various skills an attorney should be able to perform alone, with competent co-counsel or with expert consultants, including: