Ethical Considerations in Law Firm Litigation Support

1. Ethical Considerations in Law Firm Litigation Support Litigation and Practice Support Peer Group Thursday, August 8, 2013 12:00 p.m. EDT

2. The Panel: Cindy MacBean Cindy MacBean is a highly experienced litigation support professional who has managed litigation support in both an Am Law 100 law firm and corporate legal departments. She has recommended, designed, implemented and supported  discovery management solutions and workflow. Her proficiency in data analytics and deep understanding of the legal process have resulted in a multitude of successful projects that incorporate proven procedures with a variety of technology tools in delivering defensible discovery. Cindy is currently a member of ILTA's Litigation and Practice Support Peer Group Steering Committee.

3. The Panel: Bill Speros Bill Speros is an attorney consulting in evidence management. In that role, Bill: • Consults to the defense bar — corporate counsel and their attorneys — regarding technologies and techniques to manage evidence, staff and vendors defensibly • Serves as a “whispering” expert at meet and confers, depositions and burden-related hearings. Bill consulted (4000+ hours) to the trustee of the Bernie Madoff estates, the largest Ponzi scheme in history. Prior to opening his consultancy in 1989, Bill and his wife backpacked around the world. Bill can be reached at speros@speros.net

4. Caveats: C All ideas expressed here are our own and do not necessarily reflect the opinions or experiences of our employers or our clients. Exemplar situations have been extrapolated from compilations of experiences and should not be attributed to the speakers’ personal involvement or knowledge.

5. The Introduction C • What is an Ethic? “Ethics is knowing the difference between what you have a right to do and what is right to do.“ -Justice Potter Stewart • In common legal practice—and for today’s discussion—it is the lowest level of acceptable behavior • The obligation of the legal profession is still higher than for others. This extends to all Law firm employees, including Litigation Support.

6. Lawyers duties conform to… C State ethical rules Rules of Civil Procedure and court rules Law (common, statute law, regulations) Workplace policies and procedures [Client expectations]

7. Ethical Oversight (Over sight?) Whose Legal Interests are being pursued In-house or law firms In-house or law firms Engaged by Client or Lawyer Roles: “Requesting” and “Producing” B

8. Ethical Oversight (Over sight?) B

9. Ethical Oversight (Over sight?) B

10. Standard Ethical Requirements C • Competency • Supervision and Assignments • Privilege: • Confidentiality • Inadvertent Disclosure • Honesty: • Candor toward Tribunal • Fairness • Maintaining Integrity of Profession • Business Relationships: • Lawyer, not Witness • Related Business Interests • Limit Unauthorized Law Practice • Billing

11. Competence B • Take engagements within competence or engage those who have competence • New Discussions around keeping abreast of changes in law including technology • Practice Tip: • Encourage firm to develop competent litigation support practices, standards and training • The use of technology does not substantially change an Attorney’s obligation of knowing and understanding the work performed under their banner

12. Honesty B • Don’t intentionally deceive • Don’t: • “Obstruct access” to evidence or “alter, destroy or conceal it” • Make frivolous discovery requests (viz., “unreasonably cumulative or duplicative) • Fail to be reasonably diligent in discovery • Practice Tip: Map data discovery requests to legal theories; preserve original native files

13. Appropriate Supervision and Assignments C • Attorneys are responsible for all activity of non-lawyers who they engage • Should be engaged in the activity of the litigation support staff and their trusted non-lawyer advisors • Supervise vendors through service level agreements of timing and deliverables • Practice Tip: Implement project management processes (Service Level Agreement) report expectations, status with scope, timeline, budget

14. Business Relationships B • Law Firms doing business as Discovery Service Providers • Processing / Hosting • Contract Attorney Review • Vendor Management • Practice Tip: Contract explicitly and budget explicitly

15. Protect Privileged and Private Information C • High standards to discourage the publication of: • Privileged (Out and in-bound): Attorney work-product; attorney-client, other professions, spouses’ communications • Private: Personally Identifiable Information (PII) • Trade secrets and business confidential • Other designated by law (HIPAA, government subpoena, etc.) • The harm of inadvertent production may be mitigated by evidence of reasonable efforts, prompt notification • Practice Tip: Implementlitigation support techniques to record efforts to identify and protect such information; remind attorneys about such information

16. Billing for Support Services C

17. Practice Tip: B • Contract reviewers: If billed as a disbursement or expense, then direct pass through absent client agreement (ABA Op. 00-420 (2000) • Staff: If billed at hourly rate, the firm need not disclose its profit to the client but be reasonable Model Rule 1.5(a)): • Overhead (e.g., offices, computers, facilities) • Supervision

18. “Zero Sum Game” B Alternatives : • Staffing • Out-Source vs In-Source • PartnersvsAssociatesvsDoc Reviewers vsParalegals • Labor vs Technology: • Every task (Researching, Shepardizing, Bates numbering…) • Currently: Linear review vs Search terms vs TAR vs …

19. Questions?