Technology-assisted review (TAR) and other e-discovery technologies are affecting lawyers’ ethical responsibilities under the ABA Model Rules of Professional Conduct and their state counterparts.
Previously, we discussed the 2012 amendments to the ABA Model Rules, particularly the expansion of the duty to provide competent representation in Comment 8 to Rule 1.1 to include staying “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” As TAR continues to evolve, so must lawyers’ knowledge base in this area so they can advise clients, choose the proper tools for discovery and participate meaningfully in meet and confer sessions with opposing counsel.
Parties considering the implementation of TAR should be aware of various Model Rules. For instance:
- 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.” Therefore, lawyers must contemplate the best ways to protect confidential and privileged information, particularly if they are asked to disclose the search terms or seed sets used in TAR.
- Cooperation: Model Rule 3.2 requires lawyers to “make reasonable efforts to expedite litigation consistent with the interests of the client,” so a failure to cooperate in discovery may violate this rule if it leads to dilatory tactics. In addition, this rule may create a conflict with the duty to protect client information in Rule 1.6: in this case, lawyers must tread carefully, as a failure to cooperate may raise the court’s suspicion, as in In re: Biomet M2a Magnum Hip Implant Products Liability Litigation.
- Supervision. Model Rule 5.3 requires lawyers to supervise nonlawyers, including e-discovery vendors that they hire or retain, and ensure that their “conduct is compatible with the professional obligations of the lawyer.” Lawyers should assume responsibility for taking steps to ensure that vendors perform their work accurately and, where vendors use evolving technologies such as TAR, that these tools are employed in a defensible manner.
To comply with these rules, lawyers should consider how to make the best, most cost-effective use of TAR on their clients’ behalf. Knowing the ethical obligations is only half the battle; the other is realizing when lawyers know too little and require the expertise of a third-party discovery expert to fulfill their ethical obligations.
To learn more about the ethical use of e-discovery technology, please join us for our TAR Ethics Lab at LegalTech on February 6, 2014.
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