What level of technology competence does a California lawyer handling litigation need to ethically manage electronically stored information (ESI) and e-discovery?

State Bar of California COPRAC Formal Opinion 2015-193: Ethical Duties in the Handling of E-Discovery

Short answer: The opinion concludes that an attorney's ethical duty of competence under former Rule 3-110 evolves with technology and, for litigation, requires a basic understanding of, and facility with, e-discovery; on a case-by-case basis a higher level of technical knowledge may be necessary, and a lawyer without that competence must acquire it, associate with or consult someone (lawyer or non-lawyer) who has it, or decline the representation, with lack of competence also potentially violating the duty of confidentiality under section 6068(e)(1) and former Rule 3-100.

Currency note

This opinion was issued in 2015, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rule 3-110 (competence; now Rule 1.1) and former Rule 3-100 (confidentiality; now Rule 1.6), and former Rule 1-100(A) (use of materials from other jurisdictions). Business and Professions Code section 6068(e)(1) and Evidence Code sections 952, 954, and 955 remain in force. Subsequent rule amendments or later opinions may have changed parts of the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The opinion analyzes a hypothetical in which Attorney defends Client (a large company) against Chief Competitor in a judicial district that mandates e-discovery consideration in case management. Attorney has no e-discovery expertise, does not consult one, and at the initial case management conference agrees to Opposing Counsel's proposal: a joint search of Client's network using Opposing Counsel's vendor, joint search terms, and a clawback agreement covering inadvertently produced privileged ESI. Attorney assumes the clawback will let him recover anything he "inadvertently" produces, drafts keywords without expert input, accepts Opposing Counsel's "neutral-looking" additions, and relies on Client's IT department and CEO's assurance that no electronic information has not already been produced in hard copy. Vendor obtains unsupervised direct access to Client's network. Months later, Opposing Counsel accuses Client of spoliation. An e-discovery expert hired post-hoc finds (a) routine document destruction by Client's retention policy resulted in gaps, and (b) the overbroad search terms produced both privileged material and proprietary information about Client's upcoming product to Chief Competitor.

On the duty of competence under former Rule 3-110, the opinion concludes that the duty applies fully to e-discovery. The committee draws on ABA Model Rule 1.1 Comment [8] ("benefits and risks associated with relevant technology") and lists eight specific tasks competent handling of e-discovery may require: (i) initial assessment of e-discovery needs; (ii) implementing ESI preservation; (iii) analyzing client ESI systems; (iv) advising on collection and preservation options; (v) identifying ESI custodians; (vi) competent meet-and-confer on e-discovery; (vii) performing data searches; (viii) collecting and producing responsive ESI in a recognized manner. Under former Rule 3-110(C), an attorney lacking sufficient learning has three options: acquire it before performance, associate or consult with a competent lawyer or non-lawyer technical expert, or decline the representation. The opinion cites California State Bar Formal Opinion 2010-179 for the principle that consultation with non-lawyer experts can satisfy competence.

On supervision, the opinion concludes that competence under former Rule 3-110 includes a non-delegable duty to supervise subordinate attorneys, non-attorney employees, outside vendors, and even the client itself when the client performs litigation tasks. Citing California State Bar Formal Opinion 2004-165, San Diego County Bar Formal Opinion 2012-1, Cardenas v. Dorel Juvenile Group (D. Kan. 2006), and Palomo v. State Bar (1984), the committee holds the lawyer must remain regularly engaged in the expert's work, educate everyone involved in the e-discovery workup on the legal and factual matters, issue appropriate instructions, and conduct tests before releasing ESI. Attorney's reliance on Client's IT department, without instruction or supervision, was inadequate.

On confidentiality, the opinion concludes that a failure of competence in e-discovery can also breach the duty under Business and Professions Code section 6068(e)(1) and former Rule 3-100. Under Regents of University of California v. Superior Court (2008) and Kilopass Tech. v. Sidense Corp. (N.D. Cal. 2012), inadvertent privilege disclosure during ESI production is protected only if the lawyer and client took reasonable steps to prevent the disclosure. Attorney here took only minimal steps and may be found not to have acted "inadvertently" at all. The committee also notes that clawback agreements limited to privileged ESI do not protect non-privileged proprietary information, and that California's clawback statute (Code of Civil Procedure section 2031.285) addresses procedure but not the underlying waiver question.

The committee declines to opine on whether Attorney's specific acts here constitute a disciplinable violation, noting that former Rule 3-110 requires intentional, reckless, or repeated failures (citing In the Matter of Torres, Gadda, and Riordan), and that the opinion does not set a civil standard of care.

In practice

Under this opinion, conduct that was consistent with California's rules as they stood at the time is conduct in which the lawyer (i) makes an early assessment of likely e-discovery issues and the lawyer's own capacity to handle them; (ii) if those capacities are insufficient, acquires the necessary learning, associates with or consults a competent lawyer or non-lawyer expert (which Rule 3-110(C) permits), or declines; (iii) supervises any vendor or client IT staff doing data collection, including instructing them on the legal issues, search-term scope, and confidentiality risks, rather than relying on a clawback agreement; and (iv) treats the duty of confidentiality under section 6068(e)(1) and former Rule 3-100 as requiring reasonable care to prevent privilege and trade-secret disclosure during ESI production, not perfection. Verify against current Rule 1.1 (competence), Rule 1.6 (confidentiality), and current California discovery statutes before relying on this framework.

Common questions

Q: Does a California litigator need to be an e-discovery expert?

A: Per the opinion, no, but the lawyer must have a basic understanding of e-discovery and assess at the outset whether the case calls for more. The committee holds that on a case-by-case basis the duty of competence may require a higher level of technical knowledge, and that "competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI." The lawyer's options are to acquire skill, associate with a competent lawyer or non-lawyer expert under former Rule 3-110(C), or decline.

Q: Does consulting an e-discovery vendor satisfy the competence duty?

A: Per the opinion, consultation is permitted, but does not eliminate the lawyer's own duty to supervise. The committee holds that supervision under former Rule 3-110 "is a non-delegable duty belonging to the attorney who is counsel in the litigation, and who remains the one primarily answerable to the court." The lawyer must remain regularly engaged with the expert's work, educate the team on the legal and factual matters, issue instructions, and conduct tests before releasing ESI.

Q: Can the lawyer rely on the client's IT department to manage e-discovery?

A: Per the opinion, the lawyer can rely on the client's IT staff if those staff possess the necessary expertise, but the lawyer must still supervise. The committee cites San Diego County Bar Formal Opinion 2012-1 and Cardenas v. Dorel Juvenile Group (D. Kan. 2006) for the duty to supervise clients in e-discovery, and Palomo v. State Bar (1984) for the consequences of failing to supervise non-attorney staff. The committee holds Attorney's instruction simply to "allow Vendor access" was inadequate supervision.

Q: Does a clawback agreement protect against waiver of attorney-client privilege?

A: Per the opinion, not by itself. The committee holds that the clawback in this hypothetical was limited to "inadvertently produced" privileged ESI and that, given Attorney's lack of pre-production review, Opposing Counsel could argue the disclosure was not inadvertent and that no reasonable care was taken to prevent it. The committee cites Regents of University of California v. Superior Court (2008) and Kilopass Tech. v. Sidense Corp. (N.D. Cal. 2012) for the requirement that the holder of the privilege act with reasonable care. The committee also notes that clawbacks limited to privileged ESI do not protect non-privileged but confidential proprietary information.

Q: Can a failure of e-discovery competence violate the duty of confidentiality?

A: Per the opinion, yes. The committee holds that the duty under section 6068(e)(1) and former Rule 3-100 requires the exercise of reasonable care to protect client secrets and privileged communications, citing Matter of Johnson (Rev. Dept. 2000) for the proposition that section 6068(e) is "the most strongly worded duty binding on a California attorney." Attorney's failure to review the data, instruct the client, or supervise the vendor may have breached that duty in addition to former Rule 3-110.

Q: What about lawyers whose practice does not involve litigation?

A: Per the opinion, the analysis is anchored to "an attorney's ethical obligations relating to his own client's ESI" and "attorneys who handle litigation." The committee notes that "not every litigated case involves e-discovery," but that "in today's technological world, almost every litigation matter potentially does." The opinion does not extend the analysis to non-litigation contexts.

Background and rules framework

The opinion interprets former California Rule 3-110 (competence; including subdivisions (A), (B), and (C)) and former Rule 3-100 (confidential information of a client), together with Business and Professions Code section 6068(e)(1) and Evidence Code sections 952, 954, and 955 (attorney-client privilege). The committee uses ABA Model Rule 1.1 Comment [8] as persuasive authority under former Rule 1-100(A) for the proposition that competence includes keeping abreast of the benefits and risks of relevant technology. The committee also draws extensively on federal case law on ESI preservation and waiver, justified by California's Electronic Discovery Act of 2009 having been modeled on the 2006 federal rules amendments (FRCP 16, 26, 33, 34, 37, 45).

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-110 (competence; subdivisions (A), (B), (C))
• Former California Rule 3-100 (confidentiality)
• Former California Rule 1-100(A) (use of other jurisdictions' materials)
• ABA Model Rule 1.1 and Comment [8] (technology competence) (referenced)

Statutes:

• California Business and Professions Code section 6068(e)(1)
• California Evidence Code sections 952, 954, 955 (attorney-client privilege)
• California Code of Civil Procedure section 2016.020 (ESI definition)
• California Code of Civil Procedure section 2031.010 (electronic-discovery procedures)
• California Code of Civil Procedure section 2031.285 (clawback procedure)
• California Rules of Court, rule 3.728 (case management conferences)
• Federal Rules of Evidence, rule 502 (waiver)
• Federal Rules of Civil Procedure, rules 16, 26, 33, 34(a), 37, 45 (2006 amendments) (referenced)

Cases:

• In the Matter of Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, negligence alone insufficient for Rule 3-110(A) violation
• In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416, reckless and repeated acts
• In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, reckless and repeated acts
• In the Matter of Respondent G. (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 175, failure to advise clients of inheritance taxes
• In re Matter of Copren (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 861, multiple omissions in single bankruptcy matter
• In re Matter of Layton (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 366, reckless representation
• Palomo v. State Bar (1984) 36 Cal.3d 785, supervision of non-attorney staff
• Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, section 6068(e) duty of confidentiality
• Regents of University of California v. Superior Court (Aquila Merchant Services, Inc.) (2008) 165 Cal.App.4th 672, reasonable care to protect privilege on inadvertent disclosure
• Kilopass Tech. Inc. v. Sidense Corp. (N.D. Cal. 2012) 2012 WL 1534065, waiver through unreasonable screening procedures
• Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010) 685 F.Supp.2d 456, gross negligence in ESI preservation
• Chin v. Port Authority (2nd Cir. 2012) 685 F.3d 135, abrogation of Pension Committee
• Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003) 220 F.R.D. 212; (S.D.N.Y. 2004) 229 F.R.D. 422, litigation-hold duty
• Toshiba America Electronic Components, Inc. v. Superior Court (Lexar Media, Inc.) (2004) 124 Cal.App.4th 762, federal decisions persuasive
• Vasquez v. Cal. School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35, same
• State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, handling of inadvertently produced materials
• Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, same
• Cardenas v. Dorel Juvenile Group, Inc. (D. Kan. 2006) 2006 WL 1537394, duty to supervise client in ESI matters

Other opinions cited:

• California State Bar Formal Opinion 1988-96: client secrets definition
• California State Bar Formal Opinion 2004-165: duty to supervise outside contract lawyers
• California State Bar Formal Opinion 2010-179: confidentiality and reasonable care in technology use
• San Diego County Bar Association Formal Opinion 2012-1: duty to supervise clients in ESI

See also

• CA COPRAC Op. 2016-195: Confidentiality of Public Info
• CA COPRAC Op. 2020-203: Data Breaches
• CA COPRAC Op. 2023-208: Remote Practice
• CA COPRAC Op. 2026-210: Flat Fees and Termination

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/2025-11/CAL%202015-193%20%5B11-0004%5D%20%2806-30-15%29%20-%20FINAL1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2015-193

ISSUE: What are an attorney's ethical duties in the handling of discovery of electronically stored information?

DIGEST: An attorney's obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information ("ESI"). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney's duty of confidentiality.

AUTHORITIES INTERPRETED: Rules 3-100 and 3-110 of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code section 6068(e). Evidence Code sections 952, 954 and 955.

STATEMENT OF FACTS

Attorney defends Client in litigation brought by Client's Chief Competitor in a judicial district that mandates consideration of e-discovery issues in its formal case management order, which is consistent with California Rules of Court, rule 3.728. Opposing Counsel demands e-discovery; Attorney refuses. They are unable to reach an agreement by the time of the initial case management conference. At that conference, an annoyed Judge informs both attorneys they have had ample prior notice that e-discovery would be addressed at the conference and tells them to return in two hours with a joint proposal.

In the ensuing meeting between the two lawyers, Opposing Counsel suggests a joint search of Client's network, using Opposing Counsel's chosen vendor, based upon a jointly agreed search term list. She offers a clawback agreement that would permit Client to claw back any inadvertently produced ESI that is protected by the attorney-client privilege and/or the work product doctrine ("Privileged ESI").

Attorney believes the clawback agreement will allow him to pull back anything he "inadvertently" produces. Attorney concludes that Opposing Counsel's proposal is acceptable and, after advising Client about the terms and obtaining Client's authority, agrees to Opposing Counsel's proposal. Judge thereafter approves the attorneys' joint agreement and incorporates it into a Case Management Order, including the provision for the clawback of Privileged ESI. The Court sets a deadline three months later for the network search to occur.

Back in his office, Attorney prepares a list of keywords he thinks would be relevant to the case, and provides them to Opposing Counsel as Client's agreed upon search terms. Attorney reviews Opposing Counsel's additional proposed search terms, which on their face appear to be neutral and not advantageous to one party or the other, and agrees that they may be included.

Attorney has represented Client before, and knows Client is a large company with an information technology ("IT") department. Client's CEO tells Attorney there is no electronic information it has not already provided to Attorney in hard copy form. Attorney assumes that the IT department understands network searches better than he does and, relying on that assumption and the information provided by CEO, concludes it is unnecessary to do anything further beyond instructing Client to provide Vendor direct access to its network on the agreed upon search date. Attorney takes no further action to review the available data or to instruct Client or its IT staff about the search or discovery. As directed by Attorney, Client gives Vendor unsupervised direct access to its network to run the search using the search terms.

Subsequently, Attorney receives an electronic copy of the data retrieved by Vendor's search and, busy with other matters, saves it in an electronic file without review. He believes that the data will match the hard copy documents provided by Client that he already has reviewed, based on Client's CEO's representation that all information has already been provided to Attorney.

A few weeks later, Attorney receives a letter from Opposing Counsel accusing Client of destroying evidence and/or spoliation. Opposing Counsel threatens motions for monetary and evidentiary sanctions. After Attorney receives this letter, he unsuccessfully attempts to open his electronic copy of the data retrieved by Vendor's search. Attorney hires an e-discovery expert ("Expert"), who accesses the data, conducts a forensic search, and tells Attorney potentially responsive ESI has been routinely deleted from Client's computers as part of Client's normal document retention policy, resulting in gaps in the document production. Expert also advises Attorney that, due to the breadth of Vendor's execution of the jointly agreed search terms, both privileged information and irrelevant but highly proprietary information about Client's upcoming revolutionary product were provided to Chief Competitor in the data retrieval. Expert advises Attorney that an IT professional with litigation experience likely would have recognized the overbreadth of the search and prevented the retrieval of the proprietary information.

What ethical issues face Attorney relating to the e-discovery issues in this hypothetical?

DISCUSSION

I. Duty of Competence

A. Did Attorney Violate The Duty of Competence Arising From His Own Acts/Omissions?

While e-discovery may be relatively new to the legal profession, an attorney's core ethical duty of competence remains constant. Rule 3-110(A) provides: "A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." Under subdivision (B) of that rule, "competence" in legal services shall mean to apply the diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. Read together, a mere failure to act competently does not trigger discipline under rule 3-110. Rather, it is the failure to do so in a manner that is intentional, reckless or repeated that would result in a disciplinable rule 3-110 violation. (See In the Matter of Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 149 ("We have repeatedly held that negligent legal representation, even that amounting to legal malpractice, does not establish a [competence] rule 3-110(A) violation."); see also, In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416 (reckless and repeated acts); In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41 (reckless and repeated acts).)

Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent. Maintaining learning and skill consistent with an attorney's duty of competence includes keeping "abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, . . ." ABA Model Rule 1.1, Comment [8]. Rule 3-110(C) provides: "If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required." Another permissible choice would be to decline the representation. When e-discovery is at issue, association or consultation may be with a non-lawyer technical expert, if appropriate in the circumstances. Cal. State Bar Formal Opn. No. 2010-179.

Not every litigated case involves e-discovery. Yet, in today's technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness has used email or other electronic communication, stores information digitally, and/or has other forms of ESI related to the dispute. The law governing e-discovery is still evolving. In 2009, the California Legislature passed California's Electronic Discovery Act adding or amending several California discovery statutes to make provisions for electronic discovery. See, e.g., Code of Civil Procedure section 2031.010, paragraph (a) (expressly providing for "copying, testing, or sampling" of "electronically stored information in the possession, custody, or control of any other party to the action.") However, there is little California case law interpreting the Electronic Discovery Act, and much of the development of e-discovery law continues to occur in the federal arena. Thus, to analyze a California attorney's current ethical obligations relating to e-discovery, we look to the federal jurisprudence for guidance, as well as applicable Model Rules, and apply those principles based upon California's ethical rules and existing discovery law.

We start with the premise that "competent" handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case. The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. If e-discovery will probably be sought, 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 an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist. Rule 3-110(C). Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

• initially assess e-discovery needs and issues, if any;
• implement/cause to implement appropriate ESI preservation procedures;
• analyze and understand a client's ESI systems and storage;
• advise the client on available options for collection and preservation of ESI;
• identify custodians of potentially relevant ESI;
• engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
• perform data searches;
• collect responsive ESI in a manner that preserves the integrity of that ESI; and
• produce responsive non-privileged ESI in a recognized and appropriate manner.

See, e.g., Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010) 685 F.Supp.2d 456, 462 – 465 (defining gross negligence in the preservation of ESI), (abrogated on other grounds in Chin v. Port Authority (2nd Cir. 2012) 685 F.3d 135 (failure to institute litigation hold did not constitute gross negligence per se)).

In our hypothetical, Attorney had a general obligation to make an e-discovery evaluation early, prior to the initial case management conference. The fact that it was the standard practice of the judicial district in which the case was pending to address e-discovery issues in formal case management highlighted Attorney's obligation to conduct an early initial e-discovery evaluation.

Notwithstanding this obligation, Attorney made no assessment of the case's e-discovery needs or of his own capabilities. Attorney exacerbated the situation by not consulting with another attorney or an e-discovery expert prior to agreeing to an e-discovery plan at the initial case management conference. He then allowed that proposal to become a court order, again with no expert consultation, although he lacked sufficient expertise. Attorney participated in preparing joint e-discovery search terms without experience or expert consultation, and he did not fully understand the danger of overbreadth in the agreed upon search terms.

Even after Attorney stipulated to a court order directing a search of Client's network, Attorney took no action other than to instruct Client to allow Vendor to have access to Client's network. Attorney did not instruct or supervise Client regarding the direct network search or discovery, nor did he try to pre-test the agreed upon search terms or otherwise review the data before the network search, relying on his assumption that Client's IT department would know what to do, and on the parties' clawback agreement.

After the search, busy with other matters and under the impression the data matched the hard copy documents he had already seen, Attorney took no action to review the gathered data until after Opposing Counsel asserted spoliation and threatened sanctions. Attorney then unsuccessfully attempted to review the search results. It was only then, at the end of this long line of events, that Attorney finally consulted an e-discovery expert and learned of the e-discovery problems facing Client. By this point, the potential prejudice facing Client was significant, and much of the damage already had been done.

At the least, Attorney risked breaching his duty of competence when he failed at the outset of the case to perform a timely e-discovery evaluation. Once Opposing Counsel insisted on the exchange of e-discovery, it became certain that e-discovery would be implicated, and the risk of a breach of the duty of competence grew considerably; this should have prompted Attorney to take additional steps to obtain competence, as contemplated under rule 3-110(C), such as consulting an e-discovery expert.

Had the e-discovery expert been consulted at the beginning, or at the latest once Attorney realized e-discovery would be required, the expert could have taken various steps to protect Client's interest, including possibly helping to structure the search differently, or drafting search terms less likely to turn over privileged and/or irrelevant but highly proprietary material. An expert also could have assisted Attorney in his duty to counsel Client of the significant risks in allowing a third party unsupervised direct access to Client's system due to the high risks and how to mitigate those risks. An expert also could have supervised the data collection by Vendor.

Whether Attorney's acts/omissions in this single case amount to a disciplinable offense under the "intentionally, recklessly, or repeatedly" standard of rule 3-110 is beyond this opinion, yet such a finding could be implicated by these facts. See, e.g., In the Matter of Respondent G. (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 175, 179; In re Matter of Copren (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 861, 864; In re Matter of Layton (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 366, 377 – 378.

B. Did Attorney Violate The Duty of Competence By Failing To Supervise?

The duty of competence in rule 3-110 includes the duty to supervise the work of subordinate attorneys and non-attorney employees or agents. See Discussion to rule 3-110. This duty to supervise can extend to outside vendors or contractors, and even to the client itself. See California State Bar Formal Opn. No. 2004-165 (duty to supervise outside contract lawyers); San Diego County Bar Association Formal Opn. No. 2012-1 (duty to supervise clients relating to ESI, citing Cardenas v. Dorel Juvenile Group, Inc. (D. Kan. 2006) 2006 WL 1537394).

Rule 3-110(C) permits an attorney to meet the duty of competence through association with another lawyer or consultation with an expert. See California State Bar Formal Opn. No. 2010-179. Such expert may be an outside vendor, a subordinate attorney, or even the client, if they possess the necessary expertise. This consultation or association, however, does not absolve an attorney's obligation to supervise the work of the expert under rule 3-110, which is a non-delegable duty belonging to the attorney who is counsel in the litigation, and who remains the one primarily answerable to the court. An attorney must maintain overall responsibility for the work of the expert he or she chooses, even if that expert is the client or someone employed by the client. The attorney must do so by remaining regularly engaged in the expert's work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand. The attorney should issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI.

Here, relying on his familiarity with Client's IT department, Attorney assumed the department understood network searches better than he did. He gave them no further instructions other than to allow Vendor access on the date of the network search. He provided them with no information regarding how discovery works in litigation, differences between a party affiliated vendor and a neutral vendor, what could constitute waiver under the law, what case-specific issues were involved, or the applicable search terms. Client allowed Vendor direct access to its entire network, without the presence of any Client representative to observe or monitor Vendor's actions. Vendor retrieved proprietary trade secret and privileged information, a result Expert advised Attorney could have been prevented had a trained IT individual been involved from the outset. In addition, Attorney failed to warn Client of the potential significant legal effect of not suspending its routine document deletion protocol under its document retention program.

Here, as with Attorney's own actions/inactions, whether Attorney's reliance on Client was reasonable and sufficient to satisfy the duty to supervise in this setting is a question for a trier of fact. Again, however, a potential finding of a competence violation is implicated by the fact pattern. See, e.g., Palomo v. State Bar (1984) 36 Cal.3d 785, 796.

II. Duty of Confidentiality

A fundamental duty of an attorney is "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." (Bus. & Prof. Code, § 6068 (e)(1).) "Secrets" includes "information, other than that protected by the attorney-client privilege, that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." (Cal. State Bar Formal Opinion No. 1988-96.) "A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1), without the informed consent of the client, or as provided in paragraph (B) of this rule." (Rule 3-100(A).)

Similarly, an attorney has a duty to assert the attorney-client privilege to protect confidential communications between the attorney and client. (Evid. Code, §§ 952, 954, 955.) In civil discovery, the attorney-client privilege will protect confidential communications between the attorney and client in cases of inadvertent disclosure only if the attorney and client act reasonably to protect that privilege. See Regents of University of California v. Superior Court (Aquila Merchant Services, Inc.) (2008) 165 Cal.App.4th 672, 683. This approach also echoes federal law. A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege. See Kilopass Tech. Inc. v. Sidense Corp. (N.D. Cal. 2012) 2012 WL 1534065 at 2 – 3 (attorney-client privilege deemed waived as to privileged documents released through e-discovery because screening procedures employed were unreasonable).

In our hypothetical, because of the actions taken by Attorney prior to consulting with any e-discovery expert, Client's privileged information has been disclosed. Due to Attorney's actions, Chief Competitor can argue that such disclosures were not "inadvertent" and that any privileges were waived. Further, non-privileged, but highly confidential proprietary information about Client's upcoming revolutionary new product has been released into the hands of Chief Competitor. Even absent any indication that Opposing Counsel did anything to engineer the overbroad disclosure, it remains true that the disclosure occurred because Attorney participated in creating overbroad search terms. All of this happened unbeknownst to Attorney, and only came to light after Chief Competitor accused Client of evidence spoliation. Absent Chief Competitor's accusation, it is not clear when any of this would have come to Attorney's attention, if ever.

The clawback agreement on which Attorney heavily relied may not work to retrieve the information from the other side. By its terms, the clawback agreement was limited to inadvertently produced Privileged ESI. Both privileged information, and non-privileged, but confidential and proprietary information, have been released to Chief Competitor.

Under these facts, Client may have to litigate whether Client (through Attorney) acted diligently enough to protect its attorney-client privileged communications. Attorney took no action to review Client's network prior to allowing the network search, did not instruct or supervise Client prior to or during Vendor's search, participated in drafting the overbroad search terms, and waited until after Client was accused of evidence spoliation before reviewing the data – all of which could permit Opposing Counsel viably to argue Client failed to exercise due care to protect the privilege, and the disclosure was not inadvertent.

Client also may have to litigate its right to the return of non-privileged but confidential proprietary information, which was not addressed in the clawback agreement.

Whether a waiver has occurred under these circumstances, and what Client's rights are to return of its non-privileged/confidential proprietary information, again are legal questions beyond this opinion. Attorney did not reasonably try to minimize the risks. Even if Client can retrieve the information, Client may never "un-ring the bell."

The State Bar Court Review Department has stated, "Section 6068, subdivision (e) is the most strongly worded duty binding on a California attorney. It requires the attorney to maintain 'inviolate' the confidence and 'at every peril to himself or herself' preserve the client's secrets." (See Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179.) While the law does not require perfection by attorneys in acting to protect privileged or confidential information, it requires the exercise of reasonable care. Cal. State Bar Formal Opn. No. 2010-179. Here, Attorney took only minimal steps to protect Client's ESI, or to instruct/supervise Client in the gathering and production of that ESI, and instead released everything without prior review, inappropriately relying on a clawback agreement. Client's secrets are now in Chief Competitor's hands, and further, Chief Competitor may claim that Client has waived the attorney-client privilege. Client has been exposed to that potential dispute as the direct result of Attorney's actions. Attorney may have breached his duty of confidentiality to Client.

CONCLUSION

Electronic document creation and/or storage, and electronic communications, have become commonplace in modern life, and discovery of ESI is now a frequent part of almost any litigated matter. Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance under rule 3-110(C), even where the attorney may otherwise be highly experienced. It also may result in violations of the duty of confidentiality, notwithstanding a lack of bad faith conduct.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

[Publisher's Note: Internet resources cited in this opinion were last accessed by staff on June 30, 2015. Copies of these resources are on file with the State Bar's Office of Professional Competence.]