Mcle Self-study Article: Technology in the Law Office the Battleground of Efficiency Versus Ethics

• Jurisdiction: United States,Federal
• Citation: Vol. 36 No. 2
• Publication year: 2014
• Author: Gordon Cruse
• topic: Technology

MCLE SELF-STUDY ARTICLE: Technology in the Law Office The Battleground of Efficiency versus Ethics

Gordon Cruse

Gordon Cruse has been in practice since 1983. Gordon has been a Certified Legal Specialist in Family Law since 1993. Gordon is a Fellow in the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers. Gordon is an expert in e-discovery. You can reach Gordon at 619-696-9922.

(Check the end of this article for information on how to access 1 hour of Legal Specialization in Family Law and 1 hour of Legal Ethics self-study credits.)

Whether an attorney is litigating or mediating a case, he faces many ethical issues and obligations. Some of these are imposed by statute, others by case law, and even more by the Rules of Professional Conduct. When it comes to using technology in the law office — whether it is in the general operation of the office, in performing electronic discovery, or even communicating with the clients — there are potential ethical pitfalls all around us. This article will discuss some of these issues and try to provide some guidance alerting you to many commonly encountered ethical issues and hopefully provide a strategy to address them.

I have lectured on topics such as the fundamentals of electronic discovery, electronic discovery and family law, ethics and electronic discovery, ethics and technology, and electronically stored information as evidence. What I hear most often from practitioners in state courts and from state court judicial officers is that these issues are not relevant to them. In reality, the exact opposite is true. It is just that nobody has been sued yet for malpractice or had to pay a huge judgment. That judgment is coming if we do not become better prepared and aware. This is very serious. The lawyers who represented Qualcomm in Qualcomm v. Broadcom (Qualcomm v. Broadcom, 548 F.3d 1004 (2008)) learned the hard way when they were sanctioned $8 million by the court for not properly supervising the collection of ESI (Electronically Stored Information), nor properly overseeing the production of ESI by the client. Further, when the lawyers learned their client had not turned over all of the responsive ESI, they hid the fact from the court and opposing counsel. And this was revealed during the trial. These lawyers were referred to the State Bar and their reputations were marred forever. Ultimately, the sanctions were lifted against them but for a reason just as damning. Essentially, the court found the lawyers were just not smart enough to be sanctioned. The only bright spot from a family law perspective was that there were a few divorces out of this mess.

You may ask yourself how we got here. It started back in 1985, when computers were brought into our offices. For many, these were primarily used as word processors. In 1998, the federal government began a study on electronic discovery, as it impacted the courts' civil rules. The landmark Zubulake decision (Zubulake v. UBS Warberg LLC, 229 F.R.D. 435) (SDNY 2004)) came down in 2003. Three years later, in 2006, the federal courts implemented their federal rules. Every state has adopted some form of the federal rules now. In 2009, the ABA began its 20/20 Ethics Commission. The Commission presented its proposal to the ABA House of Delegates in May 2012 and that proposal was adopted later that year.

The ABA 20/20 ethical rules adopted on August 7, 2012, remind us that we, as lawyers, must provide competent representation to a client. Rule 1.1 defines competence as having the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In the comment to the Rule, comment six states:

"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, engaging continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and

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