A fair portion of the CLE material at CAALA is of primary significance in single party personal injury cases. However, as with yesterday's e-discovery talk by Judge Lee Edmon, some issues are relevant in complex litigation practices. This morning I am sitting in the Legal Ethics session.
Robert Tessier just addressed a number of basic ethical conduct issues applicable to all attorneys. One such issue is the obligation of counsel discharged by the client to turn over the case file to the client and/or successor counsel. Importantly, there are two kickers to this obligation: the obligation to turn over the original file (CA Eth. Op. 1994-134 1994 WL 200778) and the obligation to turn over electronic data, including case e-mails, pleadings, discovery documents, and deposition transcripts and exhibits (CA Eth. Op. 2007-1 74 2007 WL 2461 9 14).
On the first prong of this obligation, the attorney's duty to the client precludes causing any prejudice to the client by holding onto a file after discharge:
“When a matter is pending before a tribunal, the attorney may retain possession and control of the file only to the extent necessary to represent the client competently and fulfill any outstanding obligations to the court arising out of that representation. The attorney may not, however, hold the file in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client.
(Tessier, Ethics for the Small Office (August 29, 2008).) For the complex litigation and/or class action practice, this means that it is essential that you keep the file organized (this should be happening in any event) and strewn across a file room and various attorneys' and assistants' desks.
On the second prong of this obligation, the attorney's duty to turn over the file includes a duty to turn over electronic information:
“An attorney is ethically obligated, upon termination of employment, promptly to release to a client, at the client's request: (1) an electronic version of e-mail correspondence, because such items come within a category subject to release; (2) an electronic version of the pleadings, because such items too come within a category subject to release; (3) an electronic version of discovery requests and responses, because such items are subject to release as reasonably necessary to the client's representation; (4) an electronic deposition and exhibit database, because such an item itself contains items that come within categories subject to release; and (5) an electronic version oftransactional documents, because such items are subject to release as reasonably necessary to the client's representation. The attorney's ethical obligation to release any electronic items, however, does not require the attorney to create such items if they do not exist or to change the application (e.g., from Word (.doc) to Wordperfect (.wpd)) if they do exist.
(Tessier, Ethics for the Small Office (August 29, 2008).) Electronic discovery is the new frontier of discovery practice in complex litigation. This follows naturally from the fact that we are squarely in the digital era. It also means that much of what we generate in litigation exists, in part or in whole, as digital information. Collecting that digital information an providing it to the client is no small task, particularly where e-mail is concerned. Most documents are saved in some reasonably organized manner on file servers. E-mail, on the other hand, often resides in individual attorneys' inboxes. To satisfy ethical obligations, complex litigation practices should implement some method of capturing e-mail of significance (especially e-mail to outside/opposing counsel). Adobe Acrobat allows users to save e-mails as pdfs. In addition, e-mails can simply be dragged and dropped into file folders. Other software provides similar solutions. The important issue is that you think about a process for saving case e-mails outside of your e-mail software.