A big yee-haw goes out to the Texas Bar as they recently became the thirty-sixth state in the Union to codify what the ABA Model Rules of Professional Responsibility did in 2012 and that is to add very specific language about attorney competency and technology. In the newly revised Texas Rule 1.01, Paragraph 8, it states:

Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.

All of this comes as lawyers grapple with thorny ethical issues concerning the use of cloud technology, storing privileged documents with outside vendors, and relying on key document review tasks on smart but non-human computer algorithms.

What  are your ethical duties with using new technology?

Over the last twenty years, there has been a lot of “new technology” and new methods that has a dramatic impact on how legal services are delivered. Fax machines, scanning, e-filing, document review software and machine learning all have changed the landscape of how attorneys work. Each of these changes brings new potential ethical challenges.

When it comes to e-discovery, the issue of whether an attorney has an ethical obligation to understand the risks and benefits of the relevant technology is far more probative now than ever before. The goal of any review, whether linear, keyword search or one using technology-assisted review, is to find relevant documents. When you respond to production requests, there is an affirmative duty to make reasonable efforts to find the requested documents and to produce them. In fact, Fed. R. Civ. P. 26(g) states that: “Every… discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name” verifying that to the best of the lawyer’s knowledge, a reasonable inquiry and efforts were made.

Increasingly, TAR is being to make document review more efficient and cost-effective. TAR 2.0, predictive analytics based on the continuous active learning (CAL) protocol, surfaces the most relevant documents first, continually ranking and surfacing relevant documents based on the previous coding decisions. Further, there is continued and significant judicial guidance on its use. (In Hyles v. City of New York, No. 10 Civ. 3119 (S.D.N.Y. Aug. 1, 2016), Judge Andrew Peck opined that “[t]here may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR”).

In light of TAR adoption and direction by the courts:

How can I ethically use TAR to make my review more efficient and cost-effective?

The obligations surrounding a TAR review have their foundation in Fed. R. Civ. P. 26(g). It states that: “Every… discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name” verifying that to the best of the lawyer’s knowledge, a reasonable inquiry and efforts were made.

To meet these obligations, you need to understand the strengths and weaknesses of different approaches to finding responsive documents. For starters, you need to be able to answer questions like these:

  1. Have we gone to the right sources to be confident we are securing responsive data?
  2. Have we asked the right questions to ensure we are getting responsive data?
  3. Have we collected the data in a reasonable way such that we will preserve the right files and related metadata?
  4. Did we use reasonable culling methods to weed out obviously non-responsive documents?
  5. Did we use a reasonable method to review the remaining documents in order to find responsive ones?
  6. Did we find a reasonable percentage of responsive documents?

Not knowing the answers to these questions may potentially put an attorney at risk of violating ABA Model Rule 1.6 which requires lawyers to make “reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This, of course, includes discovery documents. ABA Model Rule 5.3 also puts the onus on lawyers to ensure that their service providers act ethically.

Whether or not an attorney actually understands the algorithms or the science behind TAR, Texas Rule 1.01, Paragraph 8 states that “a lawyer should engage in continuing study and education.” After all, competency is defined in the Texas Rules of Professional Responsibility as possessing “or the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client.” This can be through sufficient learning and skill before performance is required, or association with discovery consultants or counsel.

Courts are increasingly chastising lawyers for not paying attention to “relevant technology” such as TAR. Ultimately, while perfection isn’t required in e-discovery, the courts expect lawyers to act reasonably. Understanding your obligations surrounding the use of new technology can give you and the client comfort that you have complied with your ethical obligations.

I recommend the following educational resources on TAR:

Webinar Replay: Five Key Principles for Discovery Budgeting and Cost Control