Ethical issues of E Discovery Outsourcing. The recent withdrawal of Boies, Schiller & Flexner of the Adelphia bankruptcy case for alleged disclosure and conflict issues with respect to a document management company stresses the need for the profession of clear guidance in dealing with outside suppliers electronic discovery.
Even the appearance of possible ethical issues related to the provision of e-discovery services, in particular with regard to the sudden emergence of third parties ‘industry’ non-legal providers can become a show in the lawsuit, or worse . Unresolved ethical issues in this area can become traps for the unwary, which could result in extreme penalties, denial of rights, restoration of rights, disciplinary action and damage to professional reputation.
Ethical issues related to non-legal services in litigation are not new. The American Bar Association, through its Model Rules of Professional Conduct and Code of Professional Responsibility predecessor, has long sought to regulate the problems that may arise, if not legal services are provided by the client, outside counsel or a third party. But e-discovery is not a simple photocopy. Given the high risks of cost, complexity and proximity to the center of the litigation process, the so-called e-discovery, at least, of a new attention to the details of best ethical practices. However, one can argue that the “reasonableness” requires trial attorneys to keep abreast of technological advances applied to electronic detection. In fact, the American Bar Association website states that “competition in the use of a technology may be a requirement to practice law. Requirements for Technological may appear as part of the rules of professional conduct, education continuing legal (CLE) programs and credit insurance premium.