PLEASE NOTE: Publication for public comment is not, and shall not be construed as, a recommendation or approval by the Board of Trustees of the materials published.

SUBJECT:
Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests)

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct.  In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.

DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 11 0004 considers: What are an attorney’s ethical duties in the handling of discovery of electronically stored information?

The opinion interprets rules 3-100, 3-110, 3-210, 5-200, and 5-220 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code section 6068.

The opinion digest states: An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law.  Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”).  On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved.  Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI.  An attorney lacking the required competence for the e-discovery issues in the case at issue has three options:  (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.  Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.

   

At its February 28, 2014 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 11-0004 for a 90 day public comment distribution.


ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT: 

Proposed Formal Opinion Interim No. 11-0004

SOURCE: 

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE:
5 p.m., June 24, 2014    

DIRECT COMMENTS TO:

Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2116
Fax: 415-538-2171
E-mail: angela.marlaud@calbar.ca.gov