Hello and welcome to this JACPA Ethics Alert blog which will discuss a recent Utah State Bar Ethics Opinion which concluded that, although the practice is widespread, law firms who allow their law student employees to use their free access to Westlaw, Lexis, and other research services to perform firm work are violating lawyer ethics rules and potentially committing a crime. The opinion is Utah State Bar Ethics Advisory Opinion Committee Opinion No. 11-03 (November 15, 2011).
According to the opinion, Westlaw typically has the following language for student access:
User may, however, access Westlaw by means of User’s Law Student Password for purposes of unpaid public internships or externships (excluding those sponsored by a state or local government or a court. Any other use, including any use in connection with the employment or externship of User, if User is a student, is prohibited…).
Lexis/Nexis typically has the following language for student access:
“Students may request access to LexisNexis using their Law School Education ID . . . for academic purposes. Academic purposes include, but are not limited to: Research skill improvement, such as improving research efficiency and sharpening your area of law research skills as you prepare for practice, Summer School or course work, Work as a professor’s research assistant, Internship or externship for school credit, Study for the Bar Exam”
“Academic purposes” do not include research conducted for a law firm, corporation, or other entity (other than a professor or law school) that is paying the student to conduct research, or that is passing along the cost of research to a third party. These are deemed “commercial purposes.”
According to the opinion, “(n)umerous students” have complained about what appears to be a widespread practice and that the practice involves theft of services since law students are usually given free accounts to online research services like Westlaw upon entering law school and are required to agree (in writing) to use the research services for educational or non-profit purposes only. The opinion also states that practicing lawyers cannot expect law students to breach their contractual obligations to Westlaw. “Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities.”
According to the opinion, “(r)equiring, encouraging or even tolerating the violation of the law student’s contractual obligation to refrain from using the services for profit is…conduct involving dishonesty or misrepresentation (and) therefore is also a violation of (Utah Bar Rule) Rule 8.4(c) (substantially the same as Florida Bar Rule 4-8.4(c)) and is also a violation of Utah Bar Rule 5.3 which requires that the lawyer to properly supervise the non-lawyer law student (substantially the same as Florida Bar Rule 4-5.3).
Bottom line: The conclusion of this Utah Ethics Opinion is not surprising (and of course is not binding on Florida lawyers); however, it highlights how important it is for lawyers to be aware of potential ethical pitfalls unrelated to the actual practice of law. I suspect that this issue is not (or was not) on the radar for many lawyers but maybe it is now…
…and be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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