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.