Ethical Considerations in Law Firm Litigation SupportLitigation and Practice Support Peer Group

Thursday, August 8, 201312:00 p.m. EDT

The Panel: Cindy MacBeanCindy 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.

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The Panel: Bill SperosBill 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

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Caveats:

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.

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The Introduction 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.

C

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Lawyers duties conform to…

1. State ethical rules

2. Rules of Civil Procedure and court rules

3. Law (common, statute law, regulations)

4. Workplace policies and procedures

5. [Client expectations]

C

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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

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Ethical Oversight (Over sight?)

B

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Ethical Oversight (Over sight?)

B

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Standard Ethical Requirements

C

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CompetenceTake 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 trainingThe use of technology does not substantially change an

Attorney’s obligation of knowing and understanding the work performed under their banner

B

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Honesty 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

B

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Appropriate Supervision and Assignments

Attorneys are responsible for all activity of non-lawyers who they engageShould 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

C

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Business Relationships Law Firms doing business as Discovery

Service Providers Processing / Hosting Contract Attorney Review Vendor Management

Practice Tip: Contract explicitly and budget explicitly

B

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Protect Privileged and Private InformationHigh 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 confidentialOther designated by law (HIPAA, government subpoena, etc.)

The harm of inadvertent production may be mitigated by evidence of reasonable efforts, prompt notification

Practice Tip: Implement litigation support techniques to record efforts to identify and protect such information; remind attorneys about such informationC

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Billing for Support Services

Common Name

Work Location

CompensationSupervisi

onAnd

Duties

Common Billing

Standards

Partner

(Track)

Salary

Hourly

Lawyer Firm Yes Yes

Professional Standards

Market (includes

profit)Staff Lawyer

Firm as employee

No

Yes Yes

Usually

Contract Lawyer

Firm as temporar

y

Cost + reasonable overhead

Paralegals

Firm as employee

Inferred from

Lawyer

Market (includes

profit)

Support Staff, Ancillary(Lit Support, photocopy)

Usually

Cost + reasonable overhead

Outsourced Reviewer

Off-site Yes Contract(?) Cost

C

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Practice Tip: 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

B

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“Zero Sum Game”

Alternatives : StaffingOut-Source vs In-SourcePartners vs Associates vs Doc Reviewers vs Paralegals

Labor vs Technology: Every task (Researching, Shepardizing, Bates numbering…)Currently: Linear review vs Search terms vs TAR vs …

B

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Questions?

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