Principle 1 - Professionalism

DRAFT – UNDER DEVELOPMENT – PLEASE COMMENT

The Principle

Service Providers should perform their work in a competent, accurate, timely and cost-effective manner, adhering to the highest standards of professionalism and ethical conduct.

The Corollary

Clients should be forthright, accurate and timely in their communications with Service Providers and act at all times in accordance with the highest professional standards of ethical conduct.

Guidelines

1. Competence

A Service Provider shall provide competent performance of services to a Client. Competent performance requires the knowledge, skill, candor, diligence, thoroughness and preparation reasonably necessary for the engagement.

2. Advice

In representing a client in an advisory capacity, a consulting Service Provider shall exercise objective professional judgment and render candid advice.

3. Accuracy

Service Provider(s) and Client(s) should provide each other with accurate and reasonably verifiable information and resulting materials in connection with each engagement.

4. Diligence

A Service Provider should act with reasonable diligence and promptness in performing work for a Client.

5. Communication

A Service Provider should:

1. Consult with the Client about the means by which the Client’s objectives are to be accomplished;




2. Keep the client reasonably informed about the status of the matter;




3. Promptly comply with reasonable requests for information;




4. Promptly advise the Client of any limitation(s) that could materially impact the extent or quality of services to be provided; and




5. Promptly report the existence of suspected child pornography to the appropriate legal authorities as required by law

A Client should:

1. Promptly inform a Service Provider of any circumstance that may materially alter that Service Provider’s engagement, including, but not limited to, changes in timing, scope and payment for services rendered or to be rendered;




2. Keep the Service Provider reasonably informed about the status, scope and payment for services rendered in connection with the engagement; and




3. Promptly comply with reasonable requests for information that may assist the Service Provider in performance of its duties.

6. Reasonable Fees and Expenses

A Service Provider shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

1. The novelty and difficulty of the engagement, and the skill requisite to perform the service properly;




2. The likelihood, if apparent to the Client, that the acceptance of the particular engagement will preclude other employment by the Service Provider;




3. The fee customarily charged for similar services;




4. The amount involved and the value to the Client of the services rendered;




5. The time limitations imposed by the Client or by the circumstances;




6. The nature and length of the professional relationship with the client; and




7. The experience, reputation, and ability of the Service Provider and its personnel in performing the services

7. Cost-Effective Alternatives

A Service Provider should make commercially reasonable efforts to inform its Client throughout the engagement of reasonably foreseeable, cost-effective, alternative processes or products available through that Service Provider for achieving the Client’s stated objectives.

8. Confidentiality

A Service Provider shall not reveal information relating to an engagement unless the Client gives written consent for such disclosure. (See Principle 6).

9. Information about Products or Services

A Service Provider shall not make a false or misleading communication about the Service Provider or its services. Any statement issued by a Service Provider regarding its capabilities should have a reasonable, empirical basis that can be reviewed with the Client upon request.

Discussion

Competence, clear communication, diligence, and candor by the Service Provider are essential practices in establishing and maintaining appropriate standards of professionalism in connection with electronic discovery. Further, these practices should be reciprocated by the Client.

We specifically call out the issue of the discovery of child pornography in regards to professionalism. Images of apparent child pornography are found from time to time during the electronic discovery process. Due to strict liability laws regarding the possession of such images, Service Providers who discover them are required by law to immediately contact law enforcement and surrender possession. This legal reporting obligation supersedes any ethical duties owed to the Client.

The committee does not take any stand regarding the specific value and associated pricing for products and services offered by Service Providers. We acknowledge and support the principle of caveat emptor, however, that principle does not excuse taking unreasonable advantage over a buyer who clearly lacks knowledge of the marketplace. Thus, we provide guidelines for ethical decision-making in determining whether fees and expenses charged by a Service Provider in connection with any engagement are reasonable. These guidelines include seven factors that should be weighed in their totality. For example, when we talk about the fees customarily charged for a service, one should consider the total package of services provided on a given matter versus a specific unit / hourly cost for one component of the package. The value of the service provided to a purchaser can, and will, vary case to case. What may be of value to one purchaser, may be of little value to another, and thus we recognize that price and value are highly subjective. Our intent is to suggest ethical guidelines for pricing to the sophisticated seller who is knowingly facing an unsophisticated buyer. As a corollary, we believe an unsophisticated buyer has an obligation to gain knowledge and expertise of the market prior to making purchasing decisions either directly or through engaging the services of a knowledgeable E-Discovery consultant.

Examples

1. Example – Guideline 1.1: A client asks a Service Provider to bid on a project to scan and code 100 boxes of documents. The Service Provider has never coded before. The Service Provider may take the project so long as it takes all necessary steps to perform the project competently.




2. Example – Guideline 1.2: Same as 1.1 except after the Service Provider bids on the project, the client states that it needs the project completed in less time than the Service Provider bid. The Service Provider may not rebid the project to comply with the client’s time parameters unless the Service Provider can ensure that it will meet the deadlines and perform the work competently.




3. Example – Guideline 5: After beginning to process data, the Service Provider discovers that the amount of data greatly exceeds the amount initially estimated by client. Service Provider should communicate with the client and discuss alternatives that may be more time or cost efficient for client in managing data as well as all other issues arising from the new estimates such as timetables and cost.




4. Example – Guideline 6: Same as 5. In the event that price breaks may be implicated by the increased amount of data, Service Provider should pass those along to client.




5. Example – Guideline 7: Client wants Service Provider to perform domestic coding at a coding facility. Service Provider uses a “virtual” coding floor to manage costs. Service Provider must disclose the location of both the location of the data and the location of the coders to client.