Lawyers Behaving Badly: Understanding Unprofessional Conduct in E-discovery - Ralph C. Losey

• Jurisdiction: United States,Federal
• Publication year: 2009
• Citation: Vol. 60 No. 3

Lead Article

Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discoveryby Ralph C. Losey*

Electronic discovery jurisprudence appears to have more published decisions with judges bemoaning attorney misconduct than any other area of law. Sometimes this judicial anger stems solely from the conduct of the parties to litigation, such as in United States u. Johnson.¹ In this criminal case, the defendant slipped altered e-mails to his counsel for use during trial. His attorney withdrew from representation as soon as he discovered what his client had done, and after a mistrial, the truth of what happened was later uncovered.² However, in the majority of cases, the misconduct from which the judicial anger stems originates from either the lawyer and the client or the lawyer alone.³ Examples of unethical behavior range from outright intentional fraud to gross negligence to simple attorney negligence. Negligence is not only malpractice, but it can also be unethical.⁴

Most experts in the field of e-discovery agree that the technology revolution of the last few decades and the information explosion that has followed have severely challenged the legal profession's ability to render competent legal services,⁵ Anecdotal evidence from e-discovery vendors confirms this. E-discovery vendors probably deal with more attorneys and law firms around the country than anyone. These vendors privately state that very few of their customers are technologically sophisticated. They often have humorous anecdotes regarding attorney requests illustrating their lack of technological competence. Of course, when you do not have sophisticated buyers, sellers tend to take advantage of them. This is one of the reasons e-discovery vendor costs are often shockingly high.

Negligence is a large part of the story on ethical misconduct in e-discovery, but not the whole story. Caselaw, exemplified by Qualcomm, Inc. v. Broadcom Corp.,⁶ suggests there is far more to the sanctions being imposed by judges all over the country than just lawyer incompetence.⁷ When I began my career in 1980, the imposition of sanctions, especially against attorneys, was a very rare event and motions based on spoliation were unheard of. Now they are commonplace. Why is this? It is a difficult and puzzling question.

Surely the profession has not suddenly become more sinister than before. Although, some suggest that the dominance of large firms as mega-business enterprises is causing a significant decline in overall ethics*⁸ There may be some truth to this, but a general decline in ethical standards does not explain why e-discovery jurisprudence is so rife with malfeasance.

Lawyers Are Not Keeping Up With Technology

Part of the answer lies with the incredible technological advances that have occurred over the last thirty years. The concept of society has transcended the paradigm of a nation-based industrial world to that of a global-based, techno-centric world. The rapidity of this change in civilization is unprecedented in human history. For good or bad, we are now all drowning in a flood of ephemeral, electronic information triggered by these new technologies. The dramatic inflation in the amount of information stored by companies and individuals today, along with the intangible and disorganized nature of this information, is having profound effects on litigation processes.⁹ In fact, e-discovery was birthed from this paradigm shift.¹⁰

Business and all other sectors of society have undergone this same rapid transformation. Yet, they seem to be rising to the challenge of new technologies better than the legal profession. True, there have been some spectacular ethical disasters in business, symbolized by the collapse of Enron and Arthur Andersen, and more recently by the subprime mortgage disaster and Wall Street greed. But once again, you could place some of the blame on their attorneys, especially their in-house counsel, who failed to steer these companies towards conduct consistent with the requirements of established law.

The failure of the legal profession to keep up with technology is primarily a result of two factors: (1) the archetypical personality of most lawyers and (2) the failure of most law schools to adapt to the modern technological revolution. Most lawyers are not strong in math, science, or engineering. There are exceptions, of course; we call them IP (Intellectual Property) lawyers. But for the most part, "The Law" attracts people who are gifted with a particular kind of liberal arts, logically based intelligence that inclines them to "computer-phobia." In fact, the Law School Admission Test (LSAT), designed to sort and rank potential law school applicants, solely tests logical reasoning and reading comprehension skills. A student could easily achieve a perfect score on the LSAT without knowing how to plug in a computer.

Most law schools have ignored the problem of e-discovery altogether and offer no classes on the subject. There are a few notable exceptions, such as Georgetown Law School, Cumberland Law School, and the University of Florida Levin College of Law. These schools are the exception to the rule, and most law schools have not stepped up to the plate to address this problem.

Because the root of the lawyer "Luddite" mindset is grounded in legal education, the answer also lies within the legal education system. Law schools should include electronic discovery in their standard curricula and broaden their recruitment and admission standards to include the technologically gifted.

The prevalence of technology in the law is a strong driving force behind the decline of ethics in e-discovery. This is clear. But this observation, in and of itself, does not provide a theoretical construct to understand the root of unethical conduct in e-discovery. Such understanding requires a thorough analysis of the rules of ethics and observation of legal practice. This Article presents such an analysis and offers a theory defining the root of ethical malfeasance in e-discovery situations.

The Wicked Quadrants: A Rubric to Understand the Root of Unethical Conduct in e-Discovery

There are four fundamental forces at work in e-discovery, which when considered together, explain most attorney misconduct: (1) a general lack of technological sophistication, (2) over-zealous attorney conduct, (3) a lack of development of professional duties as an advocate, and (4) legal incompetence. These "Wicked Quadrants" are depicted in the circular-diagram and cross-format diagram below.

The above circular diagram shows each quadrant in equal size. In reality, the four quadrants are not of equal power and influence. The four-arrow cross-graphic below is designed to show how these forces interact in an imbalanced fashion to explain lawyer misconduct.

The previously discussed radical transformation of society, and the problem of technology incompetence that comes with it, is the first and foremost of the four factors to consider to understand e-discovery misconduct. The other three factors arise from general ethical considerations that are not in any sense unique to electronic discovery and are addressed in the American Bar Association's Model Rules of Professional Conduct.

These four criteria interact with each other in varying ways to explain the many forms and types of attorney e-discovery misconduct. Unethical or illegal behavior by parties to litigation themselves is influenced by different factors, including raw emotional ones such as greed, fear, and hate. These four criteria do not apply to the parties to litigation; they apply only to their attorneys.

Duty to Clients v. Professional Duties

The Wicked Quadrant consists of two fundamental and diametrically opposed duties applicable to all attorneys. On one side of the scale lies an attorney's duty to clients. On the other side lies an attorney's ethical duty to the profession, including opposing parties, opposing counsel, and the courts.

There are four rules regarding an attorney's ethical duty to the profession that are relevant to e-discovery: Rule 1.1 Competence,¹¹ Rule 3.2 Expediting Litigation,¹² Rule 3.3 Candor Toward the Tribunal,¹³ and Rule 3.4 Fairness to Opposing Party and Counsel.¹⁴ Subsection (d) of Rule 3.4 pertains specifically to discovery and prohibits a lawyer from making "a frivolous discovery request" or failing "to make reasonably diligent effort to comply with a legally proper discovery request."¹⁵ The commentary to Rule 3.4(d) explains that "[t]he procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like."¹⁶ In most instances of e-discovery misconduct, these four rules of professional duties are outweighed by two rules codifying an attorney's duty to clients: Rule 1.3 Diligence¹⁷ and Rule 1.6 Confidentiality.¹⁸

The first, and by far the most "wicked" of the client duty rules, is Rule 1.3 Diligence. "A lawyer shall act with reasonable diligence and promptness in representing a client."¹⁹

As the commentary to the Rule 1.3 explains:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.²⁰

Of course a client will readily appreciate the actions taken by his or her lawyer to fulfill these duties. In fact, the commentators recognize the inherent dangers of an overzealous advocate and warn about excesses, but they stop short of actually banning them:

A lawyer is not bound, however, to press for every advantage that might...