eDiscovery Best Practices: Judge Facciola Discusses Competency and Ethics
June 27, 2012
The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) require that an attorney possess and demonstrate a certain requisite level of knowledge in order to be considered competent to handle a given matter. Specifically, Model Rule 1.1 states that, "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."
As noted in Law Technology News, eDiscovery vendor iConect hosted a free webinar last week entitled "Duty of Competency and E-Discovery", in which Joshua Gilliland, author of Bow Tie Law's Blog and founder of legal iPad app developer Majority Opinion, discussed ethics and eDiscovery with Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia. The “sheriff” speaks!
The LTN article notes that, according to Judge Facciola, the requirement for competency now requires "a fundamental understanding of the way information is produced." This entails: 1) some understanding of the information systems you and your client are relying upon; 2) knowing your own limitations; and 3) if you don't understand, have someone at your side, i.e. an expert, who does, he declared.
With regard to ethics and eDiscovery, Judge Facciola gave an example of what might occur in a 26(f) meet and confer, which he called "the linchpin" of the 2006 amendments to the Federal Rules of Civil Procedure. Two lawyers are meeting in discovery in a case involving pharmaceuticals. One lawyer knows that the drug Pharmadine is spelled with an "e" not an "a" but doesn't correct the opposing party even though he knows it will disrupt his opponent's search, prolonging the discovery period by six months. Labeling this the difference between a material fact and not speaking to correct a mistake, Facciola says there's "no ethical rule" for this, but, ultimately that lawyer is going to have to go before a judge and account for those extra six months. Model rules regulate a profession's ethics, they don't influence a judge's decision. "Ethics rules are not a safe harbor," Facciola warned.
For more observations from Judge Facciola topics such as cooperation, preservation and search methodology, click on this link to access the article from Law Technology News. And, for more on the subject of competency and ethics as it relates to eDiscovery, check out this post and this post from our archives.
So, what do you think? Are you addressing ethics and competency requirements in your firm as it relates to eDiscovery? Please share any comments you might have or if you’d like to know more about a particular topic.
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