The First eDiscovery State Finally Becomes the 39th State to Adopt Ethical Duty Of Technology Competence: Legal Technology Trends

For nearly six years, the Golden State has had the only state opinion that established attorney’s ethical duties in the handling of discovery of electronically stored information (ESI).  That state has finally become the 39th state to adopt the ethical duty of technology competence.

According to Bob Ambrogi’s LawSites blog, which has tracked all of the states’ adoption of the ethical duty of technology competence, effective this week (March 22), the state’s Rules of Professional Conduct provide that a lawyer’s duty of competence encompasses “the duty to keep abreast of the changes in the law and law practice, including the benefits and risks associated with relevant technology.”

The California Supreme Court approved the new rule on Feb. 18, 2021, which appears as Comment 1 to Rule 1.1 of California’s professional conduct rules.

This makes California the 39th state to have adopted the duty of technology competence for lawyers.

The duty stems from the American Bar Association’s Model Rules of Professional Conduct. In 2012, the ABA’s House of Delegates voted to amend Comment 8 to Model Rule 1.1, which pertains to competence, to read as follows:

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

California’s new rule came about as a recommendation of the Task Force on Access Through Innovation of Legal Services, which submitted recommendations last year to the State Bar of California’s Board of Trustees to amend rules 1.1 (and also rule 5.4).

After soliciting public comment on the proposed change, the state bar’s Standing Committee on Professional Responsibility and Conduct recommended approval. The trustees approved the rule change on Dec. 11, 2020, and filed it with the Supreme Court.

Back in June of 2015, California adopted an opinion related to eDiscovery – Formal Opinion No. 2015-193 – which stated (among other things):

An attorney lacking the required competence for e-discovery issues 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.

It’s still the only state opinion or rule (at least that I know of) which deals with eDiscovery ethics.  Glad to see that California finally decided to add technology ethics to its rules as well!

So, what do you think?  Are you surprised that California is still the only state with an eDiscovery ethics opinion or rule?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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