What standard of technical competence is expected of lawyers in England and Wales when dealing with cases involving electronically stored information?
The question is prompted by a recent opinion of the New York County Lawyers Association’s Committee on Professional Ethics which has advised lawyers in Manhattan that they have a duty to acquire and maintain the technological competence needed to manage their clients’ electronic data. My source on this is an article from Epiq headed NY Ethics Committee: lawyers without legal tech knowledge should turn down cases.
The article identifies four discrete headings – knowing about legal technology and emerging data types, taking precautions against data breach (including safeguarding data sent to third parties), the need to understand eDiscovery legal technology, and the duty to satisfy oneself as to the security arrangements of vendors and others to whom client data is entrusted.
I can leave you to read the points for yourself, but it is interesting to consider whether the position is any different for solicitors (and barristers come to that) in England and Wales.
You can answer the question for yourself quite easily by asking which of these duties would not apply to you. Looking just at the discovery side, you don’t really need an ethical code to tell you that you must assess whether eDiscovery will be required, what kinds of issues may arise or who the custodians may be – all things which, as the Ethics Committee noted, are specific obligations required by the US rules anyway, and are equally required by the Civil Procedure Rules of England and Wales.
The interesting part lies in the broader implication that there is a general duty to keep up with technological developments not just for managing electronic discovery / disclosure but more generally.
The obligation may be met by engaging the services of someone else, whether internally or externally, who does understand these things.
Just knowing the rules would be a good start in many cases. We have had rather too many judgments in the last few years containing criticism, express or implied, of the lawyers with conduct of a case in circumstances where their conduct put them and their client in breach of a specific obligation in the rules.
We have also seen a case recently in which three named firms (and good firms at that) found themselves at the wrong end of an allegation that the conduct of discovery was improper in a wider sense than “mere” breach of the rules.
Most recently, we have the Trojan Horse case discussed here by Professor Richard Moorhead – Richard Moorhead is Professor of Law and Professional Ethics at UCL, and his interest in the case derives from the ethical position rather than express breach of rules.
You will find those who assert that all lawyers must be technologists. That is not what I am suggesting here. There is, however, a professional and ethical duty to keep abreast of technology sufficient to know how technological tools and processes can support the conventional functions of the lawyer – the strategic and tactical aspects, the compliance with rules, and the fulfilment of the duty to serve the client’s interests.
In this context, it is worth looking at my recent interview with former Senior Master Whitaker who, while emphasising the need to understand both the rules and the available technology, makes the point that deep technological understanding is not required when seeking to use technology to manage disclosure. There are plenty of people out there who can be hired for this in the same way that solicitors engage barristers and experts in technical or specialist subjects arising in a case or matter.
This is not just for disputes lawyers – as the Epiq article makes clear, there is a duty to look after clients’ data in any circumstances, and this applies as much to property transactions or M&A as it does to disputes.