As competition among service providers and law firms heats up, cooperation remains the key to a successful e-discovery engagement. That is why it is important to always be clear about roles and responsibilities between vendor and law firm in this challenging environment.
The first shot over the bow was the 2012 advisory opinion by the District of Columbia Bar and the District of Columbia Court of Appeals that cautioned service providers against performing legal work and marketing practices, and lawyers delegating responsibilities to nonlawyers.
The major themes in this opinion were:
Service providers cannot make the final selection of contract attorneys to staff a project or provide legal supervision over the contract attorneys.
Staffing and supervision must be handled by a member of the D.C. Bar associated with the case.
A vendor's role should be limited to the administrative aspects of the review (i.e., finding and interviewing reviewers, handling payroll and taxes, making sure the reviewers show up to work, etc.).
Vendors cannot use broad-based statements in marketing materials (i.e., that the company is an "end-to-end" vendor or legal expertise) without including a UPL (unauthorized practice of law) disclaimer.
Attorneys who are members of the D.C. Bar should direct and supervise all review work by licensed outside attorneys.
This advisory opinion was an overreaction to a situation that has not occurred. Based on my 12 years providing e-discovery consulting and 15 as a first-chair trial attorney, I have never seen or heard of an instance where the vendor overstepped the boundary into the UPL.
The only act vendors are guilty of is providing practical advice to lawyers as they navigate the e-discovery technology maze and make important strategic decisions in this high risk emerging area. Lawyers have always engaged experts when needed to help with the challenges they face and e-discovery is no exception.