Technological competence is a key component of a lawyer’s ethical duties. But how can corporate and outside counsel, whose practice areas often involve substantive legal matters other than eDiscovery, comply with their duty of technology competence? One way is to seek assistance in some litigation matters involving ESI, such as partners that have demonstrated their discovery acumen in various ways, including through relevant certifications.
In 2012, the ABA amended comment 8 to Rule 1.1 of the Model Rules of Professional Conduct to include “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Since then, 25 states have adopted the rule of technology competence. California Formal Opinion No. 2015-193 takes this obligation further, noting that “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 eDiscovery 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.” More states are likely to follow suit.
The ethics rules permit lawyers who lack the requisite skills to fulfill their ethical duty by retaining the services of a qualified third-party eDiscovery specialist. One way counsel can measure prospective vendors’ technological competence is to examine the certifications that they have earned. The developer of the Relativity review platform, kCura, offers eight high-quality certifications that are a reliable indicator of competency in eDiscovery knowledge and practical skills.
For example, according to kCura, earning the Relativity Certified Administrator certification demonstrates “that case administrators fully understand Relativity’s capabilities, allowing [them] to maximize the software’s flexibility and provide an intuitive interface for end users.” The test is wide-ranging, covering tasks such as data loading, advanced searching, administering workspaces, managing projects, producing data, and building applications.