A malpractice suit filed earlier this summer by JM Eagle alleges that McDermott Will & Emery failed to adequately supervise the contract attorneys they retained to do document review, leading to privileged documents related to JM Eagle’s case being released. This is one of those cases where reams of scaremongering missives by lawyers hyping the ethical risks of a given area of practice turned out to be correct–e-discovery actually is pretty difficult.
E-Discovery is a discipline. Far too many attorneys in firms large and small think that e-discovery is something they can do on the side, when they are not drafting motions to dismiss an antitrust class action or preparing to depose a scientist in a patent infringement matter. Unfortunately, this is simply not true. Sure, e-discovery is an outgrowth of the rules of civil procedure and every litigating attorney needs to understand the rules. But e-discovery goes far beyond the rules. It is one thing to understand that there are different possible forms of production permitted for electronically stored information under Rule 34, and quite another to know how to effectively and defensibly identify, preserve, collect, process, review and produce ESI. The layers of complexity are many. Indeed, I would argue that there are multiple disciplines within the field of electronic discovery. (Dennis Kiker)
I’m not technologically adept enough to know what all the different forms of digital or electronic information are, but I know they are many and varied. I am entirely receptive to the notion that this is an area of law practice that anyone could just dabble in. At the same time, be on the lookout for seasoned practitioners trying to scare neophytes away more out of self-preservation than ethical concern. Please note, I am not offering any opinion as to the motive of the above-quoted lawyer, Dennis Kiker. The guy certainly knows his stuff, technology-wise. Lawyers should just proceed with caution, particularly into areas of law that deal with technologies few people really understand.
Another question here has to do with the use of contract lawyers. It’s certainly a boon for the law firms: they save on all the pesky job training and perks, and they can even pay much lower than an associate might take home. They also sacrifice control, in that they may not be able to exercise the same supervision over contract lawyers as they would over their own employees. This is not to say that contract attorneys need supervision per se, but there is a responsibility that lawyers have to their clients to know everything being done for the client on their behalf. A common meme in the legal blogosphere of late has been how outsourcing legal marketing = outsourcing ethics. Outsourcing functions traditionally performed by associate attorneys can also lead to outsourcing of ethics as well. Again, most contractors are probably very professional and responsible, but the point is that the lawyer no longer has final say over how the work is done, and therefore no control over some of the lawyer’s ethical obligations. Note that the contract lawyers in question are only named in the lawsuit (pdf) as John Does.
With this many warnings and ethical pitfalls, it’s no wonder lawyers are so stressed out. To answer my own question posed in the title to this post, of course contract lawyers can practice ethically. the real question is how to apportion the ethical risk among the lawyers involved in a case. The lawyers who use contract attorneys still have to review everything those attorneys do, since their name is ultimately the one on the signature line. The case discussed here allegedly resulted from inadequate supervision.
How do we fix this problem? I’m working on it. Stay tuned.