The Daily Journal | California Lawyer
Avoiding Sanctions: Ethical Considerations in e-Discovery
March 20, 2020
By Daniel B. Garrie
To adequately perform their duties and maintain their ethical responsibility to clients, lawyers need to demonstrate competency in e-discovery. This article summarizes some key technology-related ethical standards for attorneys regarding competency and confidentiality and guidance on avoiding ethical issues in e-discovery.
The ABA Model Rules of Professional Liability are an excellent starting point for the responsibilities of an attorney to their client. Since 2012, the ABA Model Rules of Professional Responsibility have been amended to include that attorneys need to not only engage in continuing legal education, but also require need an understanding of “the benefits and risks associated with technology.” Thirty-six states have followed suit to amend their rules.
Technology plays a substantial role in an attorney’s ethical duty to keep client information confidential. ABA Model Rule 1.6(c) requires lawyers to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
The important thing to remember is that attorneys need to educate themselves on any technical tools they use and actively engage with associates, or third party consultants, in performing technical tasks related to e-discovery.
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