As with other lawyers, litigators must comply with applicable ethics rules, professional standards of care and professional obligations. Indeed, the California Rules of Professional Conduct and the California Business and Professional Code apply to all attorneys practicing within the state. But the obligations for litigators in applying those rules, standards and obligations can differ from other practices. The following issues can present unique challenges for litigators that are not faced by their peers in the profession.

Evolving Standards of Care

The California Rules of Professional Conduct require that every attorney perform legal services “with competence.” This generally means that all lawyers owe their clients a duty to perform legal services in accordance with the degree of skill, prudence, diligence and care commonly exercised by other attorneys.

As litigators employ new techniques, technologies, and trial tactics, the standard of care can and does evolve over time. For example, the use of electronically stored information provides a new frontier for attorneys. The State Bar's Standing Committee on Professional Responsibility and Conduct addressed an attorney's ethical duties when dealing with the discovery of electronically stored information. In Formal Opinion 11-0004, the committee noted that even when dealing with such technological issues, attorneys must uphold their duty of competence by acquiring sufficient skill to deal with the new area or by associating with another competent attorney.

Thus, even though some technology may be new to many lawyers, it is typically not a defense to a grievance for litigators to claim that they did not understand the technology they were using. Litigators are usually compared against what is common in the practice, not what has always been done.