More Activity on Specialization & Competence in eDiscovery

Wednesday, October 21, 2015

I wrote last week that about the stunning decision by a Federal judge in Florida that overturned a Florida Bar rule that had prohibited law firms advertising their expertise or certifications in practice areas not recognized as a specialty by the Bar itself.  The court found that such a rule is unconstitutional on First Amendment grounds.

Then came word that the Florida Bar will not appeal that decision.  A statement from the Florida Bar Ethics and Advertising Department said it would no longer issue opinions that advertisements highlighting credentials and expertise do not comply with the lawyer advertising rules.  ACEDS then reported the Risk Manager of Searcy Denney Scarola Barnhart & Shipley (the Plaintiff firm in the underlying case) as saying  “This is a really an opportunity to force law firms to provide more accurate information to consumers and to better explain to consumers the value of their services.”.

The Bar position is that they caution firms seeking approval of advertising that they are making claims of specialization or expertise and should do so only if they can objectively verify those claims. However, the Bar will make no attempt to verify the truthfulness of the claims.

Of course, the ruling applies only in Florida but clearly it will influence bar associations in other states to act accordingly or face similar lawsuits using the Florida case as a precedent.  The impact remains to be seen when I recently attended both Relativity Fest in Chicago and the EDI Summit in New Orleans, this topic was a major subject of discussion by attendees and speakers alike.

Then came word that on Oct 15th the Supreme Court of Illinois became the 15th state (the others can be found here ) to adapt an ethical duty of technology competence.  The new Illinois rule mirrors the ABA 2012 Amendment to their Model Rule 1.1 on Competence, tow it, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”  It will become effective on Jan.1, 2016.

The push towards technical competence and the loosening of bar association rules on specialization seem to go hand in hand in making education about and skill in handling eDiscovery a necessity for litigators.  What do you think?  You can contact me directly with your comments at


Senior eDiscovery Consultant
Advanced Discovery

Tom O’Connor is nationally known as a consultant, speaker and writer. In his consulting work, Tom specializes in working with law firms and their corporate clients to manage their electronic discovery needs. As senior eDiscovery consultant for Advanced Discovery, he assists clients in database design, implementation and training. He also addresses specific eDiscovery issues such as retention policies, litigation holds and document exchange protocols. Tom speaks at major legal conferences and writes for both the Advanced Discovery blog and national legal publications.

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