There is widespread anecdotal support for the proposition that many lawyers are technologically incompetent.
At his keynote speech at LegalTech New York on Feb. 4, 2009, U.S. Magistrate Judge John Facciola cited numerous examples of technical incompetence. Incidents included opposing counsel who agreed not to use e-discovery, and one particularly jarring case where an attorney representing a defendant in a child pornography case involving computers admitted to Facciola that he didn’t “understand this computer stuff.”
Akerman Senterfitt shareholder Ralph Losey — writing on his blog e-Discovery Team (http://ralphlosey.wordpress.com) — says the situation has reached a tipping point: “Some experts believe that attorney incompetence in e-discovery is so widespread that it presents a massive ethical crisis across the entire legal profession.”
MODEL RULES
Several rules from The American Bar Association’s Model Rules of Professional Conduct are relevant:
- Rule 1.1 is the most direct. It requires that a lawyer should provide “competent representation,” which is defined as “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
- Rule 1.3 requires that a lawyer “shall act with reasonable diligence and promptness in representing a client.”
- Rule 8.4(d) also states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”
Other than bribery or dishonesty, what could be more prejudicial to a client or to the administration of justice — or demonstrate less diligence — than to represent a client despite being incompetent to discover and manage the evidence most directly pertaining to the facts of the case?
Lawyers do not have to personally master all the technical details pertaining to discovering or managing electronically stored information. Ethical Consideration 6-3 of the 1983 ABA Code of Professional Responsibility (replaced by the MRPC) states in part that, “Proper preparation and representation may require the association by the lawyer of professionals in other disciplines” (emphasis added).
So the rules seem pretty clear — know how to find and analyze electronic information or use someone who does.
But the ethical analysis doesn’t end there. Rule 8.3 of the MRPC imposes an obligation on lawyers to report violations of the MRPC by other lawyers, i.e. to protect clients from their attorneys. Rule 2.15 of the 2007 ABA Model Code of Judicial Conduct also imposes obligations on judges who have knowledge of a lawyer’s violation of the rules of professional conduct.
Given the number of cases involving sanctions and the widespread stories of technical incompetence, we might expect that there would be many filing of reports or complaints about technical incompetence by lawyers. However, this almost never happens.
In fact, a good part of the notoriety of the recent decision in Qualcomm Inc. v. Broadcom, Corp., 2008 WL 66932 (S.D. Cal., Jan. 07, 2008) comes from the fact that U.S. Magistrate Barbara Major referred the sanctioned attorneys (the “Qualcomm Six”) to the State Bar of California for appropriate investigation. [Judge Rudi Brewster later vacated the sanctions and permitted a self-defense exception to the attorney-client privilege. Qualcomm Inc. v. Broadcom Corp., 2008 WL 638108 (S.D. Cal., March 05, 2008)].
ALTERNATIVES
Ethical rules don’t seem to be working, so what is the alternative? Facciola suggested to the standing-room-only LegalTech audience that lawyers should be continually tested for technical competence. Should individual courts require a demonstration of technical competency under their own local rules, perhaps by written exam?
Should there be a national technical competency certification? This would provide the best assurance of competency with the least duplication of effort across individual courts, but would take the longest time to put in place.
Of course, long term, law schools need to prepare graduates properly, as Ralph Losey has long argued.
More will be required. Lawyers have a societal obligation to provide affordable, competent representation.
SEISMIC SHIFT
As litigation evolves, perhaps part of this process will be a seismic shift in how we resolve disputes. After all, companies, and indeed countries, would be better off with millions of dollars being spent on research and development, or customer service, or health care, rather than being allocated to review of documents.
But any change will involve leadership and creativity in breaking away from the profitable (to the law firm) but costly (to the client) “we-have-to-look-at-every-document” paradigm.
Lawyers need a working knowledge of technologies and processes that can make e-justice affordable, such as concept clustering, e-mail threading, horizontal de-duping, near-duping, statistical sampling, qualitative benchmarking of manual review, predictive reviews, single-instance archiving, native review, shared review platforms and cloud computing.
Recognizing that vendors and outside counsel have a vested financial interest in selling the maximum amount of processing and review time, in-house counsel may have to take the lead, and insist that their teams adopt these new technologies — or fire those folks and hire people who will.
A simple example: de-duping records across entire populations can typically reduce reviewed records by 20 percent to 30 percent, yet de-duping is often used just within the records of a single custodian.
Not only are clients paying to have the same records re-reviewed, they’re being exposed to the risks of inconsistent decision making.
Civil rules changes, ethics, malpractice risks and competitive forces are all pushing litigators, willingly or unwillingly, into the brave new world of technology. As they say in the movies, “We can do this the easy way or we can do this the hard way.”
Why not seize on the opportunity to lower the costs and burdens of the discovery process by implementing new technology.
Joseph Howie is a legal technology consultant and writer based in Bartlesville, OK. He is active in the Association of Litigation Support Professionals.
By Joseph Howie
Law Technology News
March 3, 2009
