Locking Down Law Firm Data Security in E-Discovery

, Corporate Counsel

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If there's one thing that the business world has learned about transferring data in the last few years, it's that cybersecurity problems can, do and will happen.

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What's being said

  • Ethan S. Burger

    Are Corporations Defrauded by their Outside Counsel?by Ethan S. BurgerAdjunct ProfessorWashington College of LawThere are very few professions today that are held in high regard by the U.S. public. Doctors? Clergy? Teachers? There was an old adage (perhaps no longer valid) that doctors would never testify against other doctor in medical malpractice cases. Lawyers are largely self-regulating. This is not likely to continue indefinitely. With increased governmental regulation, cross-border transactions and technological change, one might think that legal malpractice would be a booming areas of practice.There are many young lawyers with huge student loans to pay. Lawyers are like cells, they tend to move from where they are highly concentrated to where they are less so.On recent years, a rather large literature on legal ethics and malpractice has appeared. See Legal Ethics Research Guide available at law.georgetown.edu/library/research/guides/legal_ethics.cfm. InIt 2001, the Georgetown University Law Center hired Michael S. Frisch is first Ethics Counsel. He has produce an enormous amount of scholarship including about ethics, legal malpractice and the globalization and multi-jurisdictional practice. See his website at law.georgetown.edu/faculty/frisch-michael-s.cfm.William Hodes, Manuel R. Ramos, Mitt Regan, Deborah L. Rhode, Douglas Richmond, Carole Silver, Sarah Terry and many others. They and many others have produced a lot of valuable scholarship that is likely to find its way into case law. The American Law Institute seeks to add some clarity in this area with its classic Restatement of the Law Governing Lawyers. There is even an excellent textbook on the topic: Susan Fortney and Vincent R Johnson, Legal Malpractice Law: Problems and Prevention. There are many institutional and personal reasons that these cases have not been very common. Of course, there is no way to actually know since most cases settle and the facts kept secret on-disclosure agreements.Corporations are reluctant to sue their law firms since this may trigger law suits against directors and officers. Is it appropriate for such entities not to pursue claims on behalf of their shareholders? As law firms grow, especially when they open up offices abroad, they become more difficult it is to manage and maintain quality control. It is uncertain whether improved technology and the adoption of new styles of organization will reduce the risk of malpractice. Personally, I am skeptical – law firms are ripe targets for cyber-attacks and their clients do not look favorably at the disclosure of confidential information. Ironically, many law firms do not follow the advice they give their clients.Law firms are reluctant to take on contingency cases – but these cases might provide opportunities for investors. Generally, clients who have been the victim of poor legal work may hesitate to hire another law firm to bring a claim given the difficulty of providing causality. This situation may not exist where there are smoking guns. Technology may provide a trail to follow. With the end of the social contract and loyalty within law firms, their non-rainmaking partners (replaced by temporary staff attorneys), and shrinkage of the size of support staffs in response to the integration of technology into law firm operations, there may be literally an army of witnesses of instances of legal malpractice. The use of temporary attorneys for document review purposes are replete with risk of legal malpractice since they are often compensated for the number of documents they have reviewed rather than the quality of their work. They have no stake in the outcome of the cases they work on and they are often working in areas they are not familiar with, have not aware of the facts in the case and poorly supervised. This suggests that self-regulation presents a problem that will either be solved through regulation or large payouts on lawsuits.

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