PLEASE NOTE: Publication for public comment is not, and shall not be, construed as a recommendation or approval by the Board of Trustees of the materials published.
Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests)
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.
Proposed Formal Opinion Interim No. 11‑0004 considers: What are an attorney’s ethical duties in the handling of discovery of electronically stored information?
The opinion interprets rules 3-100 and 3-110 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code section 6068(e).
The opinion digest states: An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. 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”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e‑discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.
At its Feb. 28, 2014 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 11-0004 for a 90-day public comment distribution. Subsequently, at its Dec. 5, 2014 meeting, COPRAC revised the opinion in response to the public comments received and, in further accordance with its Rules of Procedure, tentatively approved Proposed Formal Opinion Interim No. 11‑0004 for an additional 90‑day public comment distribution.
Proposed Formal Opinion Interim No. 11-0004
State Bar Standing Committee on Professional Responsibility and Conduct
5 p.m., April 9, 2015
The State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Fax : 415-538-2171