US lawyers are much more expressly focused on the ethics of litigation than we are in the UK. A cynical US lawyer once told me that that is because there is a paper on Ethics in law exams. My own view is that this is consistent with the general preference in the US for bright lines – clear statements which permit one to say with confidence when you are about to cross the line.
The rules and codes governing the conduct of UK lawyers are no less onerous in practice – there is nothing unethical about us because we don’t bang on about ethics to the same extent. The Law Society and Bar Council are certainly focused on ethical matters and universities – UCL for example – offer courses on legal ethics. US lawyers just talk about it more.
Disclosure has always been a source of potential risk for lawyers. In all common law jurisdictions they have a duty to give full discovery whether the result is in their client’s interests or not, and they can be punished for breach of that duty. The arguments lie at the boundary between concealment and neglect or oversight. They are perhaps accentuated as lawyers rely increasingly on technology to help them with their searches.
Gabriela Baron is senior vice president of Xerox Litigation Services. She has written an article called Five Scenarios to Test the Ethics of Technology-Assisted Review which, although based in US rules and practice, is of interest anywhere which requires discovery. The most basic duty, appearing in the second question, is framed as “Are you able to effectively communicate the pros and cons [of technology assisted review] to your client?
That ought to be a particularly easy question in the US because ABA Model Rule of Professional Conduct 1.1 specifically requires lawyers “to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”. Whilst many lawyers in other jurisdictions might disdain or be ignorant of the use of technology, I doubt that many of them would deny that their duty requires them to keep up in the way expressed in the ABA model rule.
Gabriela Baron’s article covers more specific things like the sharing of seed sets and the extent of proper reliance on external providers. Lawyers in any jurisdiction would do well to consider the points which Gabriela Baron makes.