As the e-discovery industry has exploded, vendors’ roles have expanded and changed as well. Just a few years ago, it was more common for attorneys and their firms to have to piece together several vendors to form a cohesive e-discovery attack plan. These days, many service providers offer more start-to-finish options.
Even though it is all very technical, vendor work sometimes walks the line between IT work and actual lawyering. The District of Columbia Court of Appeals has become wary of discovery vendors that might offer misleading advertisements about their legal certifications. Last week the Court’s Committee for the Unauthorized Practice of Law (sounds intimidating!) delivered an opinion clarifying some rules relevant to discovery vendors.
While they were at it, the committee delivered a couple solid kidney shots. Ouch….
Most of the 11-page opinion [PDF] is fairly straightforward. In great detail, it reinforces Rule 49, the rule providing that in order to practice law in Washington, D.C., you have to be an active member of the District bar association.
It specifically discusses the ways Rule 49 applies to legal services organizations:
In 1999, the Committee issued Opinion 6-99 to address the applicability of D.C. Court of Appeals Rule 49 to the conduct of legal staffing services — companies that place attorneys on a temporary basis with legal services organizations. That opinion was prompted by the increasing practice of law firms and other legal services organizations seeking to retain attorneys on a temporary basis for particular projects, and the consequent emergence of companies offering to identify attorneys for such temporary placements.
More often than not, the projects for which legal services organizations seek the assistance of temporary attorneys involve “document review” — the process of reviewing very large numbers of documents for large scale litigation or investigation matters.
The court has provided several updated guidelines to the rule over the last several years, to adapt to changing standards. A lot of the most recent guidance is dull, redundant legalese.
But right toward the end, you finally see the committee’s frustration with discovery vendors that are overstepping some important boundaries. The committee seems particularly uncomfortable with vendors who say they can do too much:
For example, terms like “document review” and “the discovery process” encompass numerous discrete tasks, some of which involve the application of legal judgment and some of which do not.
Broad statements that a company can manage the entire document review or discovery process — by providing “soup-to-nuts” or “end-to-end” solutions, e.g. — have a serious potential to mislead. Accordingly, discovery services companies should avoid making such broad statements or at a minimum must include a prominent disclaimer stating that the company is not authorized to practice law or provide legal services in the District of Columbia, [emphasis added] and that the services offered by the company are limited to the non-legal, administrative aspects of document review and discovery projects.
In order to be effective, such a disclaimer must appear on the same page as the potentially misleading claim, must be in the same font size and in close proximity to the claim
It will be interesting to see what, if any, effect this has on the legal tech industry in D.C. As the report mentions, a lot of vendors are not based anywhere near the nation’s capital. Will vendors need to alter their marketing strategies, or even the practical work they do? And will other jurisdictions follow suit?
Either way, these official comments are not a bad thing. I imagine service providers are probably a bit annoyed. But so much rides on document review and discovery; this stuff is expensive, and it often affects cases’ entire outcomes. The court’s proactive behavior is reassuring.
I’d like to know if any of our readers have worked with providers who were not adequately certified. If you have a story to share, or if your work will be affected by this new opinion, please e-mail me at cdanzig [at] abovethelaw [dot] com. Use the subject line “D.C. Discovery issues.”
APPLICABILITY OF RULE 49 TO DISCOVERY SERVICES COMPANIES [District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law]