In my last blog post, I discussed the benefits for law firms in establishing a Legal Hold Administrator position to manage legal hold activities for their clients as part of an overall eDiscovery program. Those benefits included provided better service to clients, ensuring compliance with Federal Rules of Civil Procedure and Federal Rules of Evidence requirements and guidelines, potential for economic benefit to the firm, more efficient and effective legal hold implementation and life cycle management, both for individual holds and for legal hold collections…all admirable and desirable goals for law firms to attain.
But there is a larger force at play in managing legal hold programs, and the larger eDiscovery programs, for clients…the ethical responsibilities all lawyers have to provide professional services to their clients. In this instance, we are looking at ethical requirements surrounding a lawyer’s general duty of competence from a technical standpoint. In the larger eDiscovery context, we would be concerned with an lawyer’s familiarity and understanding of such technical tools and terms as TAR, analytics, AI methodology…all the “mechanics” surrounding the intense review of oftentimes huge document collections for final production. The lawyer is not expected to be the Subject Matter Expert in these operations, but is expected to be at least conversant with those who are, and able to determine whether the client is receiving proper service from eDiscovery providers.
ABA Model Rule 1.1 is, or should be, familiar to all lawyers in stating, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Most recently, and importantly, Comment 8 to Rule 1.1 states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” While there is a general feeling that this rule and comment is somewhat vague, a majority of states have now joined in with more specific ethical requirements for technical expertise, to assist with compliance.
Kathryn Cole, FarrellFritz attorney, outlined three basic ethical obligations for technologically-competent lawyers in her January/February 2019 blog posts, which I respectfully repeat here: 1) Assess eDiscovery Needs and Issues; 2) Implement Appropriate Preservation Procedures; and 3) Analyze and Understand the Client’s ESI and systems. All of these obligations fall within the realm of legal hold program activities. The legal hold portion of eDiscovery is thus the starting point and the foundation for all eDiscovery actions and operations that follow. As Ms. Cole states, ensuring that the legal hold function fulfills its obligation of initiating litigation response is the lawyer’s ethical responsibility as well, including knowledge of how the holds are generated, implemented and especially managed. Again, the lawyer is not expected to be the expert; and for many companies, the litigation “footprint” is often too large for an attorney to individually manage. A well-experienced and knowledgeable Legal Hold Administrator is essential in providing that expertise, working with the lawyer to ensure the legal hold/eDiscovery policy requirements and procedures are fulfilled.
The ethical responsibilities a lawyer shoulders are immense, and the Model Rules and Comments recognize the increasing reliance on technology to address exponentially greater amounts of ESI being collected and reviewed. Legal hold processes and maintenance are also becoming more automated and electronic, requiring more specialized management and oversight. Lawyers depend on technology experts in ever-increasing ways; it is essential to have a competent, experienced and knowledgeable Legal Hold Administrator available to deal with the intricacies of ESI identification, collection, and provision to eDiscovery vendors for input into increasingly complex technology systems and analytics tools. The lawyer must be able to concentrate in the “legal stuff”, which is also becoming increasingly more demanding. The old saw, “Let the lawyer lawyer” has never been more relevant, as ethical requirements are pulled into closer focus.