Utah Ethics Opinion says lawyers who allow or encourage law students to use free online research for firm work are violating ethics rules and potentially committing crime

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Advertisements

Leave a comment

Filed under Florida Lawyer Ethics and Professionalism, Lawyer Ethics and Professionalism

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s