The District of Columbia Bar Rules of Professional Conduct Review Committee (“Committee”) recently released recommended changes to D.C. Bar rules 1.1, 1.6, and 4.4 to address the increased focus and evolving landscape of E-Discovery and technology in law. All D.C. practitioners should take notice of these potential rule changes, and ensure they stay current—or engage those with appropriate expertise—on these quickly changing areas of practice.

The proposed changes are as follows:

Rule 1.1 – Lawyer Competency

D.C. Rule 1.1 states that a “lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.” The proposed amendment will state in the comments to the Rule that the Rule contemplates “use of methods, procedures, and technology meeting the standards of competent practitioners.” (Rule 1.1, Comment [5], emphasis added). The Committee felt it was necessary to change the comments in this manner to ensure attorneys are “keeping abreast of technological changes, i.e., cloud computing, as well as the requirement of certain courts to use technologies such as e-discovery and e-filing.”(District of Columbia Bar, Rules of Professional Conduct Review Committee, Proposed Amendments to Selected Rules of the D.C. Rules of Professional Conduct (February 2019), available at https://www.dcbar.org/bar-resources/legal-ethics/upload/Rules-Review-Committee-Report-for-Public-Comment-2019.pdf).

The Committee also recommended new Comments to Rule 1.1 clarifying attorney obligations of disclosure and oversight of E-Discovery processes. Under proposed new Comment [6], an attorney should inform the client of the identity of any contracted lawyers who will be working on the matter, and describe the division of responsibility among the firm lawyers and the contracted lawyers. Under proposed new Comment [7], where the client directs the use of outsourced attorneys, the client should agree with the lawyer regarding the identities of the contract attorneys and their division of responsibility with the lawyer. Comment [7] also indicates that if at any time the lawyer believes the contract attorneys are not contributing to “the competent and ethical representation of the client . . . , the lawyer should inform the client and may withdraw from the representation.”

The proposed amendments to Rule 1.1 illustrate the settled expectation that attorneys must gain sufficient skills in the conduct and management of E-Discovery to capably represent their clients, and must keep the client informed about who is doing the work. An attorney’s understanding of new technology—e.g., data analytics, social media, cloud storage, mobile devices, wearables, and many other technologies—is and will continue to be an important part of the attorney’s competent representation of clients.

Rule 1.6 – Confidentiality of Information

D.C. Rule 1.6(f) requires a lawyer to “exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are used by the lawyer from disclosing or using confidences or secrets of a client.” The Committee recognized while the current rule prevents employees and other service providers utilized by a lawyer from disclosing or using Rule 1.6-protected information, the current rule does not address a lawyer’s obligation to prevent unauthorized access to information protected by the Rule, such as hacking. The proposed amendment to the rule, therefore, adds “unauthorized access to confidences or secrets of a client” as something a lawyer must exercise reasonable care to prevent.

The Committee also recommended changes to Comment [40] of the Rule, which concerns factors considered in the secure transmission of Rule 1.6 protected information. The recommendation includes the addition of two factors: cost of security measures, and difficulty in implementing the safeguards. The list in Comment [40] is not exhaustive; practitioners accordingly must consider listed and other factors appropriate to their firm’s environment and technology in safeguarding client data and information.

Finally, the Committee proposed a change to the last sentence of Comment [40] to avoid any implication that a client could unilaterally dictate more stringent, and potentially burdensome and expensive, security measures at any time during the representation. The proposed revision makes it explicit that “a client and a lawyer may agree” to measures going beyond, or falling short of, that required under the Rule. (Emphasis supplied.)

Rule 4.4 – Respect for Rights of Third Persons

D.C. Rule 4.4(b) addresses an attorney’s ethical obligations when receiving inadvertently sent materials. While the Rule already encompassed electronic documents, the Committee recommended expressly addressing associated metadata by including at the end of Comment [3] a reference to D.C. Legal Ethics Opinion (#341). According to the Committee, that Opinion “interprets paragraph (b) of D.C. Rule 4.4 to include metadata inadvertently disclosed in electronic files in a variety of litigation and non-litigation contexts,” and provides scenarios when the Rule may apply.

The proposed change would more expressly prohibit a lawyer receiving inadvertently sent materials from reviewing associated protected metadata if he or she has “actual knowledge” of the inadvertence. When electronic documents are provided voluntarily by opposing counsel and the inadvertence is not known, there is no prohibition in reviewing included metadata. The receiving lawyer may assume the metadata was intentionally sent and may inspect it unless and until he or she becomes aware there was a mistake. Mere uncertainty of inadvertence may not trigger an obligation, although a prudent lawyer in doubt should contact the sending lawyer to inquire. Similarly, where the production was made in discovery or pursuant to a subpoena – i.e., by compulsion of law – the attorney is justified in assuming the protected metadata was provided intentionally.

In general, where an attorney has knowledge, or reasonably should have knowledge, that metadata was provided inadvertently the attorney should apply the standards that govern the inadvertent production of privileged materials. Thus, the attorney should (a) avoid reviewing the metadata, (b) consult the sender, and (c) abide by the sender’s instructions as to disposition.