Monday, July 9, 2012

E-Discovery And Ethics

A recent opinion of the D.C. Bar Legal Ethics Committee:

Discovery service vendors, such as e–discovery vendors, cannot both practice law
within the District of Columbia and be partially or entirely owned by passive
non–lawyer investors consistent with D.C. Rule 5.4(b). This Committee's
jurisdiction does not include the definition of the practice of law, but the
Committee on Unauthorized Practice of Law has recently issued a detailed opinion
explaining what activities by these vendors constitute the practice of law.

The Rules of Professional Conduct do not reach non–lawyer owners of discovery
service organizations; they are not subject to bar discipline. The Rules do
reach lawyers who co–own or manage such vendors with or on behalf of non–lawyer
passive investors. The Rules also could reach lawyer employees of such vendors
who know of facts that constitute a violation of Rule 5.4(b) or lawyers who,
with similar knowledge, retain such vendors.   

In addition, lawyers who own, manage, work for or retain a discovery service
vendor that engages in the practice of law in the District of Columbia and has
passive non–lawyer investment may violate the prohibition in Rule 5.5(b) against
assisting others in the unauthorized practice of law.

(Mike Frisch)

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