Lawyer Certification on Predictive Coding

The eDiscovery Solutions Group Weekly Poll that ran from March 26, 2012 to April 2, 2012 asked whether or not lawyers should be able to explain the general technical and statistical mathematics supporting Predictive Coding to be able to utilize Predictive Coding during the eDiscovery and document coding process.

25% of the respondents to this poll indicated that lawyers should be famailiar with Predictive Coding to utilize it during the eDiscovery and document coding process. 62% of the respondents to this poll indicated that lawyers should be somewhat familiar with Predictive Coding to utilize it during the eDiscovery and document coding process.  And, 12% of the respondents to this poll indicated that lawyers should not have to be familiar with Predictive Coding to utilize it during the eDiscovery and document coding process.

Given the fact that Judge Peck's decision is still being digested and there continues to be debate among the "technical experts" within the industry about the vetting process for Predictive Coding, many may not think that it is way too early to start worrying about whether or not lawyers understand the technical nuances of this new technology.  However, I am not sure that the ABA Commission on Ethics would agree that "it is not yet time" as they are already addressing the question of what level of competence lawyers must have in applying IT concepts to the practice of law.

The technology of eDiscovery in general has leapfrogged any technology issues that most litigators have had to understand in the past.  And, Predictive Coding and all of it's cousins in computer assisted eDiscovery and search, may in fact have leapfrogged the eDiscovery technology of just 2-3 years ago.

I am sure that the courts and the industry will fully vett Predictive Coding and develope the appropriate best practice for when and how it should be used.  And, I am sure that ABA will figure out what level of competence lawyers must have in applying Predictive Coding.  I just have to wonder if the results of this process isn't a tipping point for a changing of the guard within the legal ranks?

And, since this whole "thing" is about providing equal access to the judicial system and adequate representation, let's hope they all get it right.  Certification on Predictive Coding for lawyers or not.

Click Here to review the results of this poll and the results of all of the eDSG Weekly Polls on hot topics within the eDiscovery and Information Governance market.

Labels: ABA, ABA Standing Committee on Ethics and Professional Responsibility, American Bar Association, eDiscovery, Predictive Coding

posted by Charles Skamser @ 12:26 PM 4 Comments

ABA Issues Formal Opinion 08-451 Outlining SOPs for Outsourcing Litigation Services

On Monday, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility released a statement regarding a new ethics opinion (Formal Opinion 08-451), which concludes that U.S. lawyers can outsource legal and nonlegal work provided that they adhere to ethics rules regarding competence, supervision, protection of confidential information, reasonable fees, and not assisting in the unauthorized practice of law. The opinion, entitled "Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services," outlines the ethics obligations of lawyers and firms that wish to utilize legal and nonlegal outsourcing.

Stating that "[a] lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client," the opinion notes that lawyers and law firms engage lawyers and nonlawyers for various legal and nonlegal support services, ranging from "the use of a local photocopy shop for the reproduction of documents, to the retention of a document management company for the creation and maintenance of a database for complex litigation, . . . or even to the engagement of a group of foreign lawyers to draft patent applications." The opinion acknowledges, however, that "[t]he challenge for an outsourcing lawyer is . . . to ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately."

Given the rapid rise in the cost of eDiscovery over the past 24 months coupled with the undeniable financial opportunities offered by our global economy and the recent application of Internet based technology to the litigating services market, this opinion is basically setting operating standards in a "market" where most of the horses have all left the barn, the door is still wide open and we are all wondering about the competence of the horses that haven't left.

All that being said, given the fact that this is not the mission of the ABA to endorse any practices and therefore, regardless of the press releases that are cropping up from litigation services vendors, this is not an endorsement of outsourcing your litigation services on-shore or off-shore.

It does, nonetheless, provide a framework and set of criteria for outsourcing as follows:

1. The outsource has the "legal knowledge, skill, thoroughness and preparation reasonably necessary."
2. The client consents in writing, with a knowing acceptance of the risk of breach of attorney-client confidence.
3. Outsource work is properly supervised by US counsel, including appropriate protection of client secrets.
4A. The US lawyer checks background and references.
4B. The outsource legal education is comparable to a US legal education.
5. The outsource signs a confidentiality agreement.
6. The fee remains reasonable after including any US surcharge for overhead.

In an upcoming Blog posting, I will compare the costs of completing litigation services under several different scenarios:

1. Internally within the corporation
2. Externally, on-shore with outside counsel
3. Externally, off-shore with outside counsel
4. Externally, on-shore with a 3rd party service or technology vendor and/or consulting firm
5. Externally, off-shore, with a 3rd party service or technology vendor and/or consulting firm

I predict that some of your will be shocked at the wide variance in price and/or how much money you are leaving on the table.

Labels: ABA, ABA Formal Opinion 08-451, ABA Standing Committee on Ethics and Professional Responsibility, Amercian Bar Association, Litigation Service Providers, Outsourcing

posted by Charles Skamser @ 9:55 AM 0 Comments