Bloomberg BNA has published an article by Conor Crowley which looks at both the origins and the new developments in the lawyers’ Duty of Competence in eDiscovery. It is a US article about US rules and codes of conduct. The duties apply, in their essentials, however, anywhere else and whether or not local rules impose them.
He refers, for example, to a proosed amendment to the ABA’s Model Rules of Professional Conduct which reads:
‘‘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 technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.’
Anyone care to argue with that as a proposition for a litigation lawyer in 2012?
How about the certification which counsel must sign when making the Joint Electronic Discovery Submission in the S.D.N.Y Pilot Programme for complex cases?
(2) Competence. Counsel certify that they are sufficiently knowledgeable in matters relating to their clients’ techno- logical systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.
I don’t think you have to be participating the Pilot, or in S.D.N.Y or in the US or in a very big case for that to be at the least sensible as a starting point for giving proper advice to a client.
A good article and well worth reading.