6. Ethical Considerations

The use of AI in eDiscovery implicates several ethical concerns.  The ABA Model Rules of Professional Conduct, versions of which have been adopted by 49 of the 50 U.S. states, highlight some of these issues.

Model Rule 1.1 and its accompanying comments require attorneys to provide competent representation to their client(s). As of the date of this writing, ethics committees in 37 U.S. states have agreed that this duty includes a requirement that attorneys stay informed and up-to-date on current technology and how that technology can be leveraged to provide the best results for their clients. Attorneys must, therefore, have a general understanding of AI technologies in the context of legal practice.

Attorneys also owe their clients duties of communication and confidentiality, as described by Model Rules 1.4 and 1.6.  Attorneys must keep their clients informed about the technology being used in their cases and the involvement of any third parties.  Attorneys must take affirmative steps to ensure the confidentiality of their client’s’ information, including examining the security measures of any third  parties who have access to that information and how client information may be accessed on the third-party’s system.

Attorneys must make reasonable efforts to expedite litigation consistent with the interests of their clients under Model Rule 3.2, as well as Fed. R. Civ. P. 1, requiring that attorneys participate in bringing about the just, speedy, and inexpensive resolution of disputes.  As discussed above, AI has the potential to save significant time and money in the discovery process.  Similar to the duty of competence, in order to provide effective representation, attorneys must know when and how to employ such technology to best serve their clients.

Model Rule 3.4 discusses attorneys’ duty of fairness to opposing parties and to counsel, which has interesting applications when applied to eDiscovery and the use of AI technologies in particular. Unscrupulous attorneys can hide evidence and otherwise behave unethically with or without the assistance of technology, but some have argued that AI may expand the ability of individuals misbehaving or for negligent attorneys to inflict harm absent adequate safeguards. Whether or not that is true, those responsible for employing AI technology should take extra precautions to ensure that ethical standards are met.  Sampling and other QC measures can be powerful tools to help ensure that relevant evidence is not being improperly withheld.

Finally, the Model Rules hold attorneys responsible for the actions of others, including their attorney and non-attorney subordinates (see Model Rules 5.1, 5.3, 5.4, and 5.5). Licensed in-house and law firm attorneys maintain ultimate responsibility over every aspect of their legal representation, even those performed by non-attorneys or attorneys who are employed by non-attorney owned companies.  In the realm of eDiscovery, this becomes particularly important because, as stated in Model Rule 5.4, any provider that is not 100% attorney owned and any employees that are not licensed in the jurisdiction in which they are employed are not authorized to practice law.  Therefore, law firm and in-house attorneys must provide adequate oversight over any work done by litigation support and discovery service providers.

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This article has not been revised since publication.

This post was created by JenW on February 15, 2021.

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