Electronic Discovery Law
D.C. Court of Appeals Committee on the Unauthorized Practice of Law Issues Opinion addressing "Discovery Services Companies"
On January 12, 2012, the D.C. Court of Appeals Committee on the Unauthorized Practice of Law (“UPL Committee”) approved Opinion 21-12 addressing the applicability of D.C. Court of Appeals Rule 49 to “‘discovery services companies’—companies that state they offer comprehensive discovery services, including assistance with large scale document review, to legal services organizations.” Rule 49 prohibits the unauthorized practice of law. The Opinion specifically recognizes that in recent years such companies have “dramatically expanded the scope of their services” and have “begun to describe their services in increasingly broad language.” Accordingly, the UPL Committee, through Opinion 21-12, sought to clarify the proper scope of services that such companies may offer and how those services may be represented to potential clients.
Following its discussion of the circumstances that prompted this opinion, namely “[t]he expanded scope of services offered by discovery services companies and the way they are promoted,” the UPL Committee identified a number of principles to “provide guidance to discovery services companies regarding the permissible scope of services that may be performed without engaging in the practice of law and the extent to which the companies may promote their services without holding out as authorized to practice law in the District of Columbia . . . .”
Summarizing broadly, the principles prohibit discovery services companies from providing legal advice to their clients and provide specific guidance regarding what types of services are appropriately offered and how those services may be represented in marketing materials, etc. For example, the Opinion provides that “[t]he final selection of attorneys to staff a document review project must be made by a member of the D.C. Bar with an attorney-client relationship with the client, the attorney’s legal work must be directed or supervised by a D.C. Bar member who represents the client, and the discovery services company may not otherwise violate Rule 49 or attempt to supervise the document review attorney.” The Opinion makes clear, however, that “discovery services companies do not run afoul of Rule 49 by handling the administrative aspects of hiring and supervising a document review attorney,” e.g., creating a roster of attorneys available for a particular review project, providing a work space and equipment, providing salary and benefits, etc.
Specifically regarding marketing of services offered, the Opinion requires that discovery services companies “avoid making statements in their promotional materials that are ambiguous or misleading regarding their capabilities” e.g, describing the “document review” services offered as “end-to-end” or “soup-to-nuts.” Thus, “discovery service 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, and that the services offered by the company are limited to the non-legal, administrative aspects of document review and discovery projects.” 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.” Similarly, when promoting the expertise of their staff (as opposed to the expertise of the attorneys they may provide for a review, for example), “statements regarding the legal experience of the companies’ staff must be accompanied by a prominent disclaimer that the company is not authorized to practice law or provide legal services … and that the company’s staff members cannot represent outside clients or provide legal advice.”
A copy of the full opinion is available here.
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