Recently, the EDRM released an “EDRM Model Code of Conduct,” which outlines “aspirational guidelines intended to serve as a basis for ethical decision making by all participants in the electronic discovery process.” The EDRM hopes to “provide predictability in business relationships” which will “lead to a more stable market.”
The Model Code of Conduct, or MCoC, is made up of 5 principles: Professionalism, Engagement, Conflicts of Interest, Sound Process and Security and Confidentiality.
Professionalism – “Service Providers should perform their work in a competent, accurate, timely and cost-effective manner, adhering to the highest standards of professionalism and ethical conduct.”
A provision under Principle 1 outlines communication guidelines for both service provider and client. This is particularly interesting, as it makes the point that both parties are responsible for adhering to the Code of Conduct, not just the service provider.
Engagement – “Service Providers should collaborate with Clients to establish and memorialize the terms of their relationship including any reasonably foreseeable parameters as early as possible upon the initiation of any new engagement.”
This principle covers guidelines for RFPs, project objective changes and use of sub-contractors and third parties. The Code states that these guidelines are in place to help both Service Provider and Client avoid “incurring undue fees and expenses or legal exposure.
Conflicts of Interest – “Service Providers should employ reasonable proactive measures to identify potential conflicts of interest, as defined and discussed below. In the event that an actual or potential conflict of interest is identified, Service Providers should disclose any such conflict and take immediate steps to resolve it in accordance with the Guidelines set forth below.”
The Conflicts of Interest Principle neatly outlines particular issues related to Clients, as well as the difference between business conflicts and conflicts of interest.
Sound Process – “Service Providers should define, implement and audit documented sound processes that are designed to preserve legal defensibility.”
Security and Confidentiality – “Service Providers should establish and implement procedures to secure and maintain confidentiality of all Client ESI, communications and other information.”
The Code specifically references “ESI, communications and other information” to ensure that “confidentiality shall broadly cover all case/matter related materials.”
Although most service providers and clients already adhere to these basic principles, it never hurts to have a clearly defined Model Code of Conduct to reference.