Last week I posted on how recent DC Bar opinions would cause clients to have to pay for more lawyer time. I don’t think the DC Bar was attempting to directly protect the lawyers’ market from e-discovery vendors, but instead saw that protection as an unintended consequence. As a result of the post, I received a few requests to explain my position. Being a former mandatory bar guy, I explained that ethics opinion committees, when ask to clarify a rule for a given situation, will typically go with the most ethical answer they can find.
In the DC situation, the question involved the “adequate supervision” of people performing lawyerly tasks (lawyers or not) employed by a non-law firm – in this case those doing first document review with e-discovery vendors. The answer was the higher bar, stating that 1) a DC lawyer must make the final choice of personnel, and 2) a DC lawyer must supervise the personnel involved. As well, the DC Lawyer could not be employed by a non-law firm and has to have a direct attorney-client relationship with the client. The result is clients being forced to spend more on the service, in order to provide better protections for ... the client.
So Greg, Ryan and I were in the pursuit of a three-beer solution when we came up with the idea for the: Ethics Opinion Question Challenge. The Challenge is to submit ethics questions to bar ethics opinion committees that force bars to release ever more restrictive ethics opinions. We think bars are at the back of the line when it comes to adapting to a changing market and this will force the issue with them, bringing them in to this wonderful mess the rest of us our dealing with. However, as a warning we should point out than an ‘unintended consequence’ of this challenge may be result in a smaller, protected market that belongs exclusively to lawyers.
Here’s an example to help participants in The Challenge: In DC, submit follow-on clarification questions related to the selection and supervision of non-law e-discovery vendor personnel. For selection - Does the final selection process need to include a full interview and verification of qualifications? It likely will, since the existing requirement for the lawyer to make the final selection implies the e-discovery vendor is not to be trusted. So the lawyer will need to conduct their own, independent review of the candidates. For supervision - Will the lawyer need to be on-site with the e-discovery personnel to supervise them, or can she supervise by occasionally checking in on them? Again, the best protection for the client will be on-site supervision.
Now here’s one trick to The Challenge. If the burden of extra effort in maintaining higher ethics falls mainly to the lawyer, the resulting opinion can backfire and be less protective for the client. In our example above, we end up with more billable hours for the client to pay. As a counter-example, ethics opinions on protecting electronic client communications came out saying no extra protection was needed. In this circumstance, requiring lawyers to employ encryption would only put a burden on … lawyers - and not lead to an increase in billable time.
So … there you have it, the Ethics Opinion Question Challenge. Feel free to post your questions here, or send them directly to your own ethics opinion committee. By the end of the year, we should have numerous opinions helping better protect the interests of clients.