A decade ago, we didn’t have iPhones. Google Maps, Dropbox, Kindle, YouTube, Instagram, Skype, Twitter, and Facebook didn’t exist or were new and unfamiliar. A decade ago, a lawyer would actually attempt (but fail) to successfully argue that missing a court deadline because he did not regularly check his email constituted “excusable neglect.” Now, our greatest legal curmudgeon—the lawyer who literally wrote the (stellar) Curmudgeon’s Guide to Practicing Law—is a (phenomenal) blogger. Less pleasingly, email goofs land lawyers on the front page of The New York Times. Lawyer Excel errors put clients on the hook for millions. Courts take lawyers to task for not using Google (see here and here). And clients openly wonder whether law firms are the weak link in their cybersecurity efforts.
Being able to operate the iPhone is one thing. Overseeing the logistics, technical challenges, and security nightmare of providing iPhones to dozens or hundreds or thousands of legal professionals is quite another. As is extracting potential legal evidence from the iPhone in a forensically defensible manner. Evolving technology and increasing scale combine to make specialization more and more important. Despite what my state of residence may think, nontraditional stakeholders are only growing in importance in the delivery of legal services.
We’re a week from ILTACON. I’m looking forward to what is consistently the best large conference I attend each year. ILTACON is an excellent opportunity to catch up with old friends and make new ones, most of whom are not lawyers. While many lawyers attend, ILTACON seems to bring together the most diverse group of allied legal professionals. This gathering has me ruminating about how the practice of law has changed and how lawyers increasingly rely on the contribution other professionals, specialists, and experts.
We live in interesting times. Readers of this blog are surely familiar with the California ethics opinion on ediscovery and the Second Circuit appellate ruling on document review. But I’m not sure I’ve read anyone (which is not to suggest I’ve read everyone) who has pointed out what a strange pair they make.
On June 30, 2015, the State Bar of California finalized a formal opinion holding that insufficient understanding of electronic discovery can violate the rules of professional conduct. Interestingly, California is not among the 14 states that has followed the ABA in adding “technology” to the ethical rules on competence. The lack of verbiage did not, however, stop the Standing Committee from finding a direct nexus between technology and a lawyer’s ethical duty of competence: “Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.”
Even with respect to ediscovery itself, the implications of the opinion were broadened by the observation that “Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does.” The lawyer has three options when taking on a litigation that may involve e-discovery (i.e., all litigation): (1) consult with an expert, (2) acquire sufficient learning and skill, or (3) decline representation. On cue, a California court cited the Standing Committee in an August 7 order that generated what seems to be a regularly occurring headline: Blockbuster Sanctions Order Spotlights the Importance of eDiscovery Competence.
Where the Standing Committee determined that understanding data storage and digital search is now fundamental to the practice of law and the California District Court reinforced the necessity of the lawyer supervising the search and review process, the Second Circuit Court of Appeals found that actually reviewing the collecting electronic evidence and deciding whether it was relevant to a pending litigation is no longer necessarily the practice of law. The Second Circuit revived a case by a document reviewer claiming that his work did not require legal judgment (bearing on employment classification and issues like overtime pay). The court held, “an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”
Lawyers, it seems, have an ethical obligation to understand the machines that are replacing them. Less apocalyptically, to practice law in the modern world, lawyers have to behave as if they belong to the modern world. More realistically, lawyers should recognize that practicing law increasingly involves more than just knowing ‘the law’ and that allied professionals with varying specialties can add significant value to client representation. Even in the sanctions opinion, the lawyers’ prescribed role was to supervise, not conduct, the search and collection process. Proper supervision requires that lawyers themselves get more training. But the call to supervision also recognizes that lawyers are not the only ones responsible for delivering competent legal services.