There are several ethics rules which may be implicated by the use of digital forensic examinations. As an initial matter, the attorney's competence will be called into question if he or she does not take into consideration the significance of digital files as evidence and does not ensure their preservation, or even worse, deletes them. A lawyer’s ethical obligations include competence, or the solicitation of professional services, in handling the discovery of electronically stored information (ESI). Counsel must be knowledgeable on evolving technology and know when to hire a forensic examiner to address e-discovery issues. Mishandling digital files may demonstrate a lack of competence, and could lead to an ethical violation of an attorney’s duty of confidentiality if confidential information is mistakenly produced.
A single failure to preserve data will not likely constitute an ethical violation that subjects an attorney to grievance committee action, but such behavior can easily result in court-imposed sanctions based on their spoliation of evidence. Likewise, the failure to request discovery of the opposing party’s digital devices may not support a grievance action, but could support a malpractice claim. In other words, for a slew of reasons, every litigator must be equipped to know what information is contained on, or accessed through, electronic devices, and be able to evaluate whether those digital files may contain relevant evidence for the case.
Counsel must be keenly aware of the need to preserve or request such evidence as part of actual or anticipated litigation. Preservation issues are especially pressing in the context of mobile devices. They not only have volatile data that may be overwritten in short order, but also are routinely upgraded with new models—with the older phones often turned in to the carrier and wiped clean.
The deliberate deletion of files from a digital device, done expressly to deprive another party from accessing those files, would constitute an ethical breach and could also constitute a federal criminal offense. At times, legal counsel may advise clients to “clean up” social media sites, such as Facebook, to remove information that might be used against them in a lawsuit. Such efforts will not constitute an ethical violation unless the conduct would also violate evidence-preservation obligations. Counsel should keep these preservation obligations in mind when considering where to look for digital evidence. Whether hoping to find or avoid incriminating evidence, lawyers should be attuned to how easily digital files can be altered or destroyed and should consider using a professional forensic examiner in appropriate cases. Lawyers are responsible for the conduct of non-lawyers, such as those conducting digital forensics. It is important to ensure the individuals conducting such work are well versed in the law and certified to ensure there are no ethical or legal issues.