“Watching an incompetent lawyer is like watching a clumsy ballerina.”
Magistrate Judge John M. Facciola, February 4, 2009
Magistrate Judge John M. Facciola’s keynote at Legal Tech 2009 had a call to action for lawyers to have certifications and standards of competence regarding technology.
In light of how everyday life has changed from iPhones to DVRs to Facebook, it is no surprise you can see why Judge Facciola took this position.
Cases such as Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008 ), Covad Communications Company v. Revonet, Inc. 2008 U.S.Dist. LEXIS 104204 ( Dec. 24, 2008 ), Victor Stanley, Inc. v Creative Pipe, 2008 U.S. Dist. LEXIS (May 29, 2008 ) further highlight the need to understand not just the technology the clients are using, but the litigation support products the firm is deploying.
The questions remains, how would certificates or competency standards be measured? Who would manage such a system?
History is helpful in coming up with a plan.
In 1975, California was the first state to introduce the Professional Responsibility Examination, testing candidates on legal ethics and rules of professional conduct. California enacted the “Ethics Exam” in response to many of the major players in Watergate being California attorneys. Today, California’s continuing legal education requirements includes Legal Ethics, Detection/Prevention of Substance Abuse and Elimination of Bias in the Legal Profession. These ethical requirements are managed under the existing CLE structure for California attorneys.
Just as the Bar reacted to the Watergate attorneys, State Bar Associations may have to take action against “technical incompetence.”
State Bar Associations across the country should consider requiring CLE course material specifically on the ethical duty of competency, specifically regarding technology. Moreover, the legal justification for “technically competency” is arguably already an ethical requirement. California Rules of Professional Conduct 3-110(B)(2) defines competence in any legal service as including “learning and skill.” Additionally, subsection (C)(2) states:
If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by…2) by acquiring sufficient learning and skill before performance is required. CA Rules of Professional Conduct 3-110(C)
The need to understand electronically stored information and technology was brought to life while talking with a lawyer a few months ago. The lawyer said their client was a heavily regulated industry. I would be shocked if this client did not use any software to track materials and for legal compliance. The lawyer asked, “What if I decide e-Discovery is not important because I have paper invoices and logbooks?”
The lawyer was blunt in saying he did not want to “deal” with e-Discovery. This lawyer was willing to dismiss all electronically stored information without consulting the client on what ESI existed, email archiving polices, whether they enacted a litigation hold, or doing any collection or review.
My first reaction for anyone thinking that is a good plan, please review Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008). Qualcomm stated, in relevant part:
“[An] Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.” Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).
One could argue a lawyer has made an “inadequate document search” if they do not have any discussions with their client on electronically stored information, enact a litigation hold, perform collection of ESI, or any review of e-Discovery. Furthermore, by the virtue of their search being inadequate, the lawyer’s arguments to the court would at a minimum be false, if not outright misleading.
I believe State Bar Associations are the ones in the best position to require e-Discovery continuing legal education courses. Creating new agencies or oversight organizations might tax already tight state budgets. While teaching lawyers not to be clumsy ballerinas will not be easy, adding 2 or 3 hours of e-Discovery courses on collection, technology or review probably will be the easiest song for lawyers to learn how to dance to.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.