E-Case Management: Inefficient Document Management by Law Firms is Unprofessional and Unacceptable

The Duty of Competence is a basic tenet of legal practice. It is the ABA’s Model Rule 1.1—there is literally no rule before it:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ABA Model Rule 1.1. When a lawyer provides legal representation, they must do so competently. That competence extends to more than just “knowing the law.” It extends to being a competent professional involved in the delivery of legal services. However, lawyers rarely provide legal services on their own.

Often, lawyers are accompanied and supported in the delivery of legal services by other lawyers and support staff. According to the 2019 ABA Legal Technology Survey Report, “Volume III: Law Office Technology”, 32% of respondents were “solos” while 31% of respondents were in “small firms,” defined as a firm with 2-9 lawyers.[1] The remaining 37% of respondents were in larger firms.[2] Based on these numbers, in the vast majority of cases lawyers are not acting alone. They are working with and directing others to perform work to provide legal services. As to both sets of individuals, lawyers and support staff, lawyers have a managerial and supervisor duty. Model Rule 5.2 provides that lawyers are responsible for the actions of subordinate lawyers acting at their direction and Model Rule 5.3 dictates that lawyers are similarly responsible for the actions of support staff working at their direction:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.[3]

This obligation to supervise exists at every level of law firm hierarchy. For example, while a managing partner may have supervisory and managerial obligations as to lawyers and staff members working at the firm, each partner and attorney will have supervisory and managerial obligations as to more junior lawyers and support staff. This is a trickle-down effect that covers every individual working at the law firm, down to the receptionist and file clerk.

The Duty of Tech Competence – New, Undefined, and Mandatory

The Duty of Competence is broad and in 2012 it expanded in a much needed and seismic way by explicitly encompassing the duty of “tech competence,” which consists of the duty to understand both the benefits and risks associated with technology:

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.[4]

The language of Comment 8 should be parsed. It is not enough for a lawyer to have the “knowledge” regarding the benefits and risks associated with relevant technology. They must also have skills pertaining thereto. Therefore, a lawyer armed with the knowledge of both the benefits and risks associated with technology must then implement that knowledge, so it benefits and advances the delivery of legal services to clients. As expertly addressed by Ivy Grey of Wordrake, this duty of tech competence encompasses, but has not yet defined, the “tools of the trade.” However, these tools should include (but would not be limited to) a document management software, email and other communication systems, and a PDF system with redacting capabilities.[5] And while Ms. Grey’s white paper focused on the ethical duty of competence as it relates to using technology for writing, editing, and proofreading, this white paper focuses on the ethical duty of competence as it relates to e-discovery and document management. Technology is as necessary to operating a law firm as a desk or a chair; indeed, more so. Practitioners can write a brief, collect documents, and perform a document review sitting on their living room floor if they have the right hardware, the right software, and an internet connection.

Since then, 39 State Bars have implemented tech competency requirements into their own rules of ethics.[6] (California is included in this number because while they did not formally adopt the duty of tech competence in their rules of professional conduct, the State Bar of California issued a Formal Opinion No. 2015-193, stating that clients in litigation must be competent in e-discovery or associate with others who are so competent). This, therefore, is no longer a minority position. Yet, adoption of technology for document management and e-discovery continues to be a challenge. According to the ABA, “Solos were the least likely to have document and record management software available (37%) followed by small firms (55%).”[7] In a closely related observation, case management software (which is a document management platform) is used by only approximately half of attorneys who responded to the 2019 Solo & Small Firm survey on the topic, “Overall, 53% of respondents have case or practice management software.”[8]

The ABA’s conclusion in 2019 was the following, “At the least, solos and small firms are using some technology. The availability and use of technology in these firms, however, still isn’t mainstream.”[9] This is problematic seven years after the ABA incorporated tech competence into Model Rule 1.1’s ethical duty of competence. And ethics opinions issued recently, even in states that recognize the duty of tech competence illustrate why we are still so far behind the curve as a profession.

On February 6, 2019, the Louisiana State Bar Association issued an ethics opinion regarding a “Lawyer’s Use of Technology.”[10] In this opinion, the Bar recognized that, “Technology and the internet can modify the way a lawyer practices, affecting communication, practice management, handling evidence and data storage.” However, the Bar then adds, “[i]f a lawyer is going to use technology, that lawyer has a duty to comply with [the] Rules [of Ethics].”[11] As noted by other commentators, this misses the mark in an important way, “The opinion presumes that using technology in law practice is optional and that a lawyer must be competent in technology only if the lawyer chooses to use technology.”[12]: If someone at your firm is “not good with the technology”—a phrase I would pay never to hear again from an attorney or nonlawyer at a firm—then they are not good at their job.

The Ethical Duty to Only Charge “Reasonable Fees”

Model Rule 1.1 says that a lawyer “may not collect unreasonable fees.” In 1996, the Task Force on Lawyer Business Ethics,[13] stated that a lawyer has an obligation to address the matter . . . “in a cost-effective manner and to avoid ‘churning hours.’”[14] Based on the supervisory obligations described above and imposed by Model Rules 5.2 and 5.3, this entails that lawyers have to ensure other billing individuals, including colleagues and paralegals, don’t “churn” hours either. Case law on the subject is plentiful.

The Fifth Circuit in 2018 provided the following helpful definition of “churning,” “To state the obvious, it is not reasonable for an attorney to charge for time spent on tasks that lack any reasonable prospect of creating value for the client. After all, to charge for that time would benefit only the attorney, not the client. Yet the practice is sufficiently widespread that a term has been coined for it: churning.”[15]

Churning hours, then, necessarily includes unnecessary time spent looking for documents within the client file, re-organizing documents that should have been organized properly the first time, listing documents in disclosures which should have been logged on an ongoing basis, generating privilege logs that should and can be generated from real-time logging of documents, opening and closing documents at random looking for “the right one,” and researching whether & when documents were produced because document productions were not properly tracked. Any time spent doing the above tasks results from tech incompetence. Such incompetence cannot be billed to the client, as a matter of ethics. Such wasteful billing is at the very least negligent and, at worst, can lead to fee disgorgement under Model Rule 1.5.

Similarly, time wasted identifying, collecting, reviewing, and producing documents in a way that fails to follow EDRM procedures or at least EDRM-like procedures is not reasonable and therefore cannot result in reasonable fees. Time wasted because firms don’t have e-discovery trained attorneys or a properly implemented e-discovery protocol cannot be the basis of reasonable fees. Time wasted by litigation teams that do not understand how to manage document productions and e-discovery universes cannot translate into reasonable fees.

Tech competency is therefore not only required under Model Rule 1.1’s duty of competence but it is also a necessary part of complying with Model Rule 1.5’s prohibition against unreasonable fees. In addition, proper training of both lawyers and staff must be a part of the duty of supervision under Model Rule 5.2 and 5.3.

[1] ABA, “2019 Solo & Small Firm Survey,” https://www.americanbar.org/groups/law_practice/publications/techreport/abatechreport2019/solosmallfirm19/ (last accessed Nov. 30, 2020). [2]Id. [3]ABA Model Rule 5.3. [4] ABA Model Rule 1.1, Cmt. 8 (emphasis added). [5] Ivy B. Grey, “The Ethical Duty of Technology Competence: What Lawyers Need to Know,” WordRake, http://www.wordrake.com (last accessed Nov. 29, 2020). [6] Robert Ambrogi, “Tech Competence”, LawSites Blog, https://www.lawsitesblog.com/tech-competence (last accessed Nov. 30, 2020). [7] ABA, 2019 Solo & Small Firm Survey, https://www.americanbar.org/groups/law_practice/publications/techreport/abatechreport2019/solosmallfirm19/ (last accessed Nov. 29, 2020). [8]Id. [9]Id. [10] Louisiana State Bar Association, Public Opinion 19-RPCCC-021 (Feb. 6, 20219), http://files.lsba.org/documents/Ethics/EthicsOpinionLawyersUseTech02062019.pdf (last accessed on Nov. 30, 2020). [11]Id. [12]See, e.g., Robert Ambrogi, “Ethics Opinion Misses the Mark on Tech Competence,” Above the Law (May 20, 2019), https://abovethelaw.com/2019/05/ethics-opinion-misses-the-mark-on-tech-competence/ (last accessed Nov. 30, 2020); Nicole Black, “Lawyers and technology competency: Louisiana weighs in,” The Daily Record (Apr. 25, 2019), https://nylawblog.typepad.com/suigeneris/2019/04/lawyers-and-technology-competency-louisiana-weighs-in.html (last accessed Nov. 30, 2020). [13] Task Force on Lawyer Business Ethics, 51(3):745-71 (May 1996). [14] Id. [15]Gurule v. Land Guardian, Inc., 912 F.3d 252, 262 (5th Cir. 2018).

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