Electronic Data Puts Ethical Burden On Lawyers

By Doug Sherwin of the San Diego Daily Transcript | Published: January 17, 2013

As more and more information is produced electronically, lawyers need to be competent in how digital information is stored and transmitted, according to a recent ethics opinion by the San Diego County Bar Association.

The organization’s legal ethics committee concluded that in order to provide responsible representation, a California attorney must reasonably understand his or her client’s data storage and transmission technology or consult with another attorney who has the requisite competence.

“The idea of providing competent representation is not new,” said Ed McIntyre, a partner with Solomon Ward Seidenwurm& Smith LLP who was the lead author of the opinion. “Protecting client confidentiality is not new. Providing candor to the court is not new.

“What’s changed is the fact we now live in a digital world (and that) has changed how we have to approach the black letter of those duties and apply them.”

According to the ethics opinion, more than 90 percent of all information is produced digitally, of which 80-90 percent remains in digital form.

And the amount of digitally stored information is increasing exponentially as costs to store electronic data continue to decrease.

“Attorneys need to pay attention to (the opinion) because almost every case now involves electronic discovery and, if done badly, can be very problematic and expensive to clients,” said Bill Kammer, a partner at Solomon Ward and a member of the San Diego ESI (Electronically Stored Information) Forum.

The sheer volume of electronic information can be overwhelming. According to the San Diego ESI Forum, a 16 gigabyte smartphone can store up to 1.6 million pages of paper documents while a 64 GB phone can store as much as 6.4 million pages.

“One problem is storage is so cheap that virtually no client – corporation or individual – ever throws any email away,” Kammer said. “People have backup tapes sitting in warehouses. I have clients that have an unbelievable wealth of information that has been generated on software and hardware that they don’t use anymore.”

Knowing how to sort through the endless amount of data quickly and efficiently can save a lot of expense.

Digital information also is always changing with write-over programs and auto-delete functions altering the relevant documents in any case.

“Because of the dynamic nature of digitally stored information, and because relevant information can be irretrievably lost almost in an instant, the obligation to preserve such information as soon as litigation can be reasonably anticipated has become a paramount focus of judicial scrutiny,” the ethics opinion states.

The 11-page opinion notes that it is necessary for a lawyer to have the expertise in preserving digital information and that when there’s a reasonable expectation of litigation, a lawyer must impose a “litigation hold.”

“To do this, the lawyer must become fully familiar with the client’s document retention policies, as well as the client’s data retention architecture,” according to the opinion.

Digital information also differs from paper documents with the fact some parts of electronically stored information are not immediately apparent but exist and can be access – called metadata.

“You could lose your case or you could harm your client’s interests by not paying attention to the electronic discovery data that’s available out there,” Kammer said.

Additionally, the amount of data puts a greater risk on exposing confidential information.

The ethics opinion expressly states that when relying on outside help, lawyers should only consult other lawyers and not any non-attorney vendors.

“There’s nothing here the redefines the duty of competence,” McIntyre said. “It just tries to apply it to digital storage. (What) the committee is trying to do is to put out guidance that, as a practical matter, is helpful to practitioners.”