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December 1, 2011
If Only Lawyers Really Were Ethically Obligated to Monitor the Accuracy of Online Legal Search Services and Required to Obtain Detailed Infomation about Vendors' Editor Qualifications and Search Algorithms
Carolyn Elefant is a well-respected attorney-blogger but in a recent post on a proposed new Comment to ABA Ethic Rule 5.3, I think she has over-reached to infinity and beyond in her interpretation. The proposed new comment reads in full:
 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.
Elefant take is:
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.
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.
God I wish Elefant was right about the above implications becoming ethical obligations. They just aren't. For a more sensible and more narrow interpretation, see Ethics 20/20 and Outsourcing, by Andrew Perlman, chief reporter to the ABA Commission on Ethics 20/20 in response to Elefant's post.
Elefant adds, "lawyers must ensure that computerized research services protect the confidentiality of client data – which lawyers frequently divulge when they use computerized legal research tools." Ah, we used to identify clients by an internal billing-matter account numbering system.
What's more important, in my mind, is that vendors can use their logs to scrap content by practice area, even by institutional account, to create competitive intelligence reports as a subscription-based service or more general "white papers." Folks like WEXIS know better than to identify any individual firm's usage stats (I hope) but nothing is stopping them from mining that data for sanitized CI reports. [JH]