ABA Rule 1.5 states “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” In line with this rule, ABA Ethics Opinion 08-451 clarifies that a lawyer can charge a reasonable fee for litigation support and eDiscovery services. This fee can even include a reasonable mark-up. In other words, lawyers do not have complete freedom to contract for fees but are constrained by ethical rules created for the protection of their clients.
The crux of the issue is what is a reasonable fee. The reasonableness standard of Rule 1.5 necessitates nuance. Indeed, the passage of time requires reevaluation. This is particularly the case when looking at a technologically intensive area like eDiscovery.
Technological innovation can change the landscape of entire sectors of our economy rapidly, and eDiscovery is no exception. Anvesa® eDiscovery solution is a 4th Generation platform. This means it is built 100%, natively in the Cloud. This creates tremendous efficiencies that are passed on to clients. This can have stark, if not comedic, consequences.
A Case Study of Anvesa® and Legacy Vendor Fees
A single plaintiff was suing their former employer for harassment. Defendant argued that eDiscovery should not be allowed due to the high cost being out of proportion to the value of information being gathered. Plaintiff was able to offer Anvesa’s® solution at an initial 95% cost reduction to the vendor offered by defendant. This cost reduction was increased to 99% after the culling of non-responsive data. Not surprisingly, defendant pointed to the long record of their ESI vendor in contrast to the newness of Anvesa®, to no avail.
Defense simply making this argument, however, sheds light on the intersection between the legal field and technology. New technologies are generally embraced by providers and consumers as a benefit with gains for everyone. The legal field, however, is a peculiarly risk averse. It is a high priced, client centric industry, handling a lot of confidential information. Yet, the ethical rules imposed on lawyers may demand they be more forward thinking in adopting eDiscovery solutions if they wish to pass those costs on to their clients.
Implications for What is a Reasonable Fee
Rule 1.5 states several factors to consider for what is a reasonable fee. One factor of importance here is “the fee customarily charged in the locality for similar legal services.” So, let’s consider locality and custom.
Anyone with internet access can access eDiscovery solutions from anywhere. This is even more the case with Anvesa®, where the data never leaves the Cloud no matter where you are or how you are handling it.
With technological innovation, what was customarily charged for a product or service can change dramatically. That is exactly what has happened here. As our case study suggests, it is possible to find a legacy provider who will charge $100K for something that can be done in Anvesa for under $2K.
Lawyers will still be able to use their expensive legacy products, and surely the courts are used to them, further increasing the inertia against adoption of innovation. The issue is, however, not whether these legacy products can still be used. The issue is whether lawyers can pass on those higher fees to their clients when there is much more efficient provider in the market. The Cloud Revolution is upon us and is going to accelerate innovation.
Learn More About the Efficiencies of Anvesa® at a CLE
Customs bend to technological innovation. This is especially the case when those innovations create tremendous efficiencies that allow for magnitudes of costs savings. Lawyers must be aware of any technological innovation that can save their clients’ money, or the ethical rules may bar them from passing on those costs. Anvesa currently has accredited courses offered in Texas (course # 174147495) and Missouri (course # 691238). These focus on 4th Generation eDiscovery solutions, why they are efficient, and what lawyers can expect from them. Please reach out to Anvesa to schedule a demo or ask us to put on a CLE in your state.