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Proposed ABA Ethics 20/20 Rules Will Require Lawyers to Oversee and Monitor the Accuracy of LEXIS, Westlaw and Other Computerized Legal Research Services

by Carolyn Elefant on November 17, 2011 · 6 comments

in Ethics 20/20, Legal Research and Writing

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As lawyers, we’re bound to abide by applicable statutes and precedent — yet most lawyers refuse to heed the law of unintended consequences. That’s the error committed by the ABA Commission on Ethics 20/20 with its most recent changes lto ABA Model Rule 5.3, Responsibilities Regarding Non Lawyer Assistance.  In its zeal to frustrate lawyers’ ability to use cloud computing by imposing the same supervisory obligations that apply to, say, a contract attorney, the Ethics Commission also imposes a substantial burden on lawyers who use computerized legal research services like LEXIS or Westlaw.

In a radical departure from the existing version the ABA Ethics 20/20 Commission proposes to expand the scope of Rule 5.3 to encompass not just non-legal services provided by actual people (e.g., contract lawyers, paralegals and document management companies) but also Internet-based, computerized services. Although proposed Rule 5.3 identifies cloud computing (i.e., an Internet-based service for storage of client information) as one example of computer-based services, by that same logic, computer-assisted legal research services like LEXIS, Westlaw, Fastcase, Casemaker and Google Scholar must necessarily be classified as “nonlawyer assistance” under the proposed rule as well.  Like cloud computing, computerized legal research services are delivered by providers who operate outside of the law firm. Moreover, computerized legal research services “assist the lawyer in rendering legal services to the client” far more extensively than cloud services, since legal research represents a core function of lawyering.

In broadening the definition of “nonlawyer assistance,” proposed Model Rule 5.3 significantly expands lawyers’ supervisory responsibilities to cover a wider range of services provided outside of the law firm. Specifically, proposed Model Rule 5.3 states that:

When using [nonlawyer] services outside the firm, the lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

Because virtually every lawyer uses some form of computerized legal research service, the proposed changes to Model Rule 5.3 will have a far-reaching impact. Whereas previously, lawyers could simply  rely on representations of accuracy offered computerized legal research services like LEXIS and Westlaw,  under proposed Model Rule 5.3, all lawyers – from solos to senior partners at the nation’s largest firms – must take a more active role in monitoring and supervising the provision of these services to ensure that they comport with lawyers’ professional obligations.  Among other things, proposed Model Rule 5.3 will require lawyers to inquire about the extent to which these computerized legal research providers rely on support and assistance from lawyers trained in foreign jurisdictions (who are treated as “nonlawyers” for purposes of ethics rules) and to review the extent of training afforded to computerized research company staff. If a lawyer determines that the training provided to nonlawyer personnel who write headnotes or develop search algorithms are insufficient, Model Rule 5.3 obligates the lawyer to “communicate directions [to the nonlawyer] appropriate under the circumstances.

In addition to overseeing the competence and training of nonlawyer research providers and their staff under proposed Model Rule 5.3, lawyers must continuously asses the accuracy of search results generated. To this end, lawyers would be required to obtain from computerized research providers information about their search algorithms, frequency of updates to databases and reported errors in search results.

Finally, lawyers must ensure that computerized research services protect the confidentiality of client data – which lawyers frequently divulge when they use computerized legal research tools. For example, let’s say that a firm is hired by a local politician to sue YouTube for defamation. Most likely, the lawyer assigned to the research will enter the politician’s name as the client matter, and will run searches both on topics like “defamation and YouTube and liability” and also on the particular politician. Or, a lawyer might use the research service to determine whether a pharmaceutical company meets the criteria for patenting a drug. Some computerized research providers like LEXIS own Accurint, a service that enables lawyers to check clients’ credit records and case history by inputting a client’s social security numbers.

In all of these examples – whether through search results or input of a social security numbers, lawyers are entrusting computerized research companies with confidential client information. Moreover, because computerized research providers retain these search results, they have many opportunities to rummage through client data – either by running computer scans on the data collected or even by asking analysts to review searches and try to cull those nuggets that can be monetized through an information arbitrage business model or simply sold to identity thieves. Because use of computerized legal research service potentially puts confidential client information at risk, under proposed Model Rule 5.3, lawyers must take “reasonable measures” to prevent disclosure. Such measures might include hiring an independent auditor to review computerized legal research services’ internal security measures or – if warranted, to cease using them entirely and rely only on hard copy digests available in the library to research sensitive matters.

Lawyers adopt computerized legal research services to save clients money and improve the quality and efficiency of legal research performed. Most lawyers would never tolerate the degree of intrusion that proposed Model Rule 5.3 will impose on their use of computerized legal research services. Yet, that is an unintended consequence of classifying cloud computing as “nonlawyer assistance” over which a lawyer has supervisory responsibilities under Model Rule 5.3. Because I simply don’t see any logical, principled way for Model Rule 5.3′s definition of “non-lawyer assistance” to encompass a commoditized, non-bespoke, out-of-the-box tool like cloud computing while excluding computerized legal research services.

Do you?

  • Tamar Cerafici

    I’ve been reviewing the proposed rule  to prepare for some CLE programs. The thing is ridiculous. We could start an Occupy the Ethics 20/20 Commission in protest, but the acronym (OE20/20C) would prove awkward.

    I’m at a loss to decipher the Commission’s motivations. 

  • Eric Cooperstein

    Carolyn, I think this is a little over-the-top. I looked at the proposed changes; all that’s recommended is a new comment to the rule, not a change in the rule itself. Not all jurisdictions even adopt the comments. In MN, the Supreme Court just includes the comments as advisory material, not binding law. It’s unlikely that we would even ask our Court to adopt changes to the comments without any changes to the rules (to tell the truth, it seems embarrassing to me that the ABA is going through all this work on the rules and, in many cases, only tinkering with the comments and leaving many rules untouched).

    I think your point about the risk of data-mining of search terms is good food for thought; I haven’t looked at either Lexis’ or Westlaw’s confidentiality policy. But I don’t think the comment could realistically be read to require attorneys to familiarize themselves with the algorithms for major search engines. Good legal research does not depend on the results of a single search and it is the lawyer’s responsibility to be competent in how to do legal research. No lawyer discipline agency is ever going to investigate a lawyer for failing to investigate the back end of Lexis or Westlaw

  • Nicole Black

    Actually, there is a proposed change to rule 5.3–in the title. The proposal is to change it from “Nonlawyer Assistants” to “Nonlawyer Assistance”. And, as the comment to the rule indicates, the intent in making that change is to allow the rule to apply to both human assistants and 3d party nonlawyer services, including cloud computing providers.

    For that reason, I believe that Carolyn raises a good point and isn’t really stretching the rule too far.

  • Andrew Perlman

    As the chief reporter to the 
    ABA
    Commission on Ethics 20/20, I write to correct your misinterpretation of
    the Commission’s outsourcing proposals, particularly as they apply to lawyers’
    use of online legal research tools.  Quite
    simply, the Commission’s proposals would not in any way impede lawyers’ use of these
    tools.   

    Your suggestion that the Commission’s proposed new Comment
    to Rule 5.3 would hinder lawyers’ use of Lexis and Westlaw ignores the plain
    language of the proposal.  The proposed
    new Comment to Rule 5.3, which you quote in part, says the following:

    [3] A lawyer may use nonlawyers
    outside the firm to assist the lawyer in rendering legal services to the
    client.  Examples include the retention
    of an investigative or paraprofessional service, hiring a document management
    company to create and maintain a database for complex litigation, sending
    client documents to a third party for printing or scanning, and using an
    Internet-based service to store client information.  When using such services outside the firm, a
    lawyer must make reasonable efforts to ensure that the services are provided in
    a manner that is compatible with the lawyer’s professional obligations.  The extent of this obligation will depend
    upon the circumstances, including the education, experience and reputation of
    the nonlawyer; the nature of the services involved; the terms of any
    arrangements concerning the protection of client information; and the legal and
    ethical environments of the jurisdictions in which the services will be
    performed, particularly with regard to confidentiality. See also Rules 1.1
    (competence), 1.2 (allocation of authority), 1.4 (communication with client),
    1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and
    5.5(a) (unauthorized practice of law).  When retaining or directing a nonlawyer outside the firm, a
    lawyer should communicate directions appropriate under the circumstances to
    give reasonable assurance that the nonlawyer’s conduct is compatible with the
    professional obligations of the lawyer.

    Lexis and Westlaw have outstanding reputations, and there is
    no reason to think that the information that is generated on those services is
    somehow erroneous or incomplete or that the research conducted there would be
    any less complete than if the lawyer performed the research the old-fashioned way.  So your position that, under the Commission’s
    proposal, a lawyer might be obligated to assess the qualifications of the
    employees who write Westlaw’s headnotes is simply inconsistent with what the Commission’s
    proposal actually says. 

    It is also important to note that the Commission is merely
    articulating a longstanding view – in cases, ethics opinions, and commentary –
    that lawyers have an ethical obligation to ensure that they use reliable
    sources.  That is why lawyers have long
    used books to Shepardize cases and to confirm that statutes have not been
    repealed or amended.  Lawyers have an
    ethical obligation to ensure that they are relying on accurate and up-to-date
    sources.  Nothing the Commission has
    proposed would change this obligation just because research is now conducted
    online.  

    You also suggest (without any supporting documentation) that
    Lexis and Westlaw might use lawyers’ search information and sell it to the
    highest bidder.  This is a fanciful
    hypothetical, and it is directly contradicted by the privacy policies that
    Lexis and Westlaw make readily available on their websites.   (See here and here.)

    Finally, without any supporting evidence, you say that the
    Commission has zealously sought to “frustrate lawyers’ ability to use cloud
    computing by imposing the same supervisory obligations that apply to, say, a
    contract attorney.”  Ironically, the
    second sentence of the Comment explicitly identifies cloud computing as the
    type of service that lawyers can use, so it is difficult to see how you could
    conclude that the Commission has “zeal” for frustrating the use of cloud
    computing.  The Commission’s proposal merely
    gives lawyers a set of factors to consider when using cloud computing services,
    and none of those factors suggest that lawyers will be unduly hindered or
    limited in their ability to use those services. 
    In fact, numerous ethics opinions around the country (including an ABA
    Formal Opinion) have reached a similar conclusion in this very same context,
    and there have been no reports of lawyers feeling frustrated that they cannot
    use cloud computing.

    In sum, the Commission’s proposals are designed to give more
    specific guidance to longstanding obligations so that lawyers can better
    navigate the changed legal practice landscape. 
    Your assertion that the Commission’s proposals are “a radical departure”
    in this regard is, with all due respect, without foundation, as is your
    suggestion that the proposal would impede lawyers’ ability to use reliable
    services like Lexis and Westlaw or cloud computing services more generally.  You and your readers can read the full details
    of the Commission’s proposals and others’ comments here.

  • Andrew Perlman

    To find the links that I had embedded in my earlier comment, see here: http://www.legalethicsforum.com/blog/2011/11/ethics-2020-and-outsourcing.html

  • http://wp.me/Igbc Prattle On, Boyo

    Classic, textbook example underscoring that lawyers in governing bodies such as the ABA don’t understand technology.

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