There is no doubt that electronic evidence has had an increasing impact on legal services, and the knowledge required to effectively deal with evolving technology.
In Ontario, this also has an impact on a lawyer’s duty to clients to perform legal services to the standard of a competent lawyer. In Ontario, under the Law Society of Ontario’s Rules of Professional Conduct, ‘standard of a competent lawyer’[1] entails, among other things, recognizing limitations in one’s ability to handle a matter or some aspect of it, and adapting to changing professional requirements, standards, techniques, and practices.
Although the Rules of Professional Conduct do not explicitly mention electronic discovery, counsel should nonetheless ensure that their client receives adequate legal advice about electronic discovery.
From a practical consideration, errors in the electronic discovery process can be extremely costly. Errors may lead to expensive requirements to redo part(s) of the discovery process. Worse still, significant errors may even lead to sanctions against one’s client, including cost orders. The potential risks are not limited to direct financial costs. Improperly managed e-discovery can also lead to adverse inference findings, inadvertent disclosure of confidential or privileged information, or other sanctions.
The professional requirement of competency incumbent upon lawyers will continue to evolve in the digital age. A development in California—a leading jurisdiction in e-discovery law—may well inspire Canadian law societies to consider adopting specific language regarding the use of technology.
The California E-Discovery Ethics Opinion
In an ethics opinion released in June, 2015 the State Bar of California concluded that the duty of competence that Californian lawyers must abide by extends to e-discovery. The opinion noted that:
Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”).
According to the opinion, the obligation of competence requires lawyers to ensure that their clients receive adequate advice on e-discovery matters, either directly or indirectly through the consultation of an expert. The matters in which competency is implicated include ESI preservation procedures, the identification of custodians, and discussions with opposing counsel concerning an e-discovery plan.
The Takeaway
Given the costs of errors and the evolving nature of professional ethics obligations, lawyers should retain the assistance of experienced e-discovery counsel when they do not have sufficient competence to advise clients.
[1] Section 3.1-2
