![]() ![]() If an attorney does not have sufficient learning and skill associated with the relevant technological aspects of the ESI involved in the case, Formal Opinion No. 2015-193 suggests that the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation. If e-discovery will be sought, Formal Opinion No. 2015-193, the ethical duty of competence requires and attorney to assess at the outset of each case what ESI issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. (Rule 3-110(B).) According to Formal Opinion No. “Competence” in any legal service applies to, among other things, the attorney’s “learning and skill” reasonably necessary for the performance of the services. Pursuant to California Rules of Professional Conduct, Rule 3-110, attorneys have an ethical duty of competence in their performance of legal services. 1 While the opinion is advisory only, and not binding upon the courts, the opinion should be consulted by attorneys as a roadmap for handling ESI discovery responsibly. ![]() 2015-193”) which addresses several issues related to the ethical duties of an attorney in dealing with ESI discovery. The State Bar of California Standing Committee on Professional Responsibility and Conduct recently issued a formal opinion (“Formal Opinion No. The prevalence of ESI has created unique challenges and heightened expectations for attorneys dealing with ESI in the discovery context. With more and more clients “going green” and eschewing hard copy paper records for electronic or computer stored files, and with the ubiquitous use of e-mail as a means of written communication, ESI discovery issues now arise, to some extent, in nearly every case. Not long ago, discovery of electronically stored information (“ESI”) was largely reserved for complex, technical litigation matters. Evolving Responsibilities for Attorneys in ESI Discovery ![]()
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