Tuesday, January 3, 2012

Utah opinion notes "numerous" law students report employment is conditioned upon criminal misuse of free Wexis access

According to a recently released opinion from the Utah State Bar Ethics Advisory Committee, it is professionally unethical for a practicing attorney to ask a law student to use her free Lexis or Westlaw account for firm work.  The big commercial legal research companies provide law students with free access to their services to help in the development of student legal research skills. Typically, students sign an agreement with the provider stating that they will use their free access only for educational and non-profit purposes.

The Utah Legal Ethics Advisory Committee considered whether an attorney who encouraged a student to breach her agreement by doing firm-related research had committed an ethical violation. The Committee answered in the affirmative finding that an attorney's misuse of a student's educational Wexis access is theft of services, a potential felony. Interestingly, the opinion notes that students are increasingly under pressure by employers to use their free Wexis access for firm matters. Indeed, the opinion notes that "numerous" students have reported that their "intitial or continued employment" has been conditioned upon a willingness to violate their user agreements with Wexis.

Though I didn't realize this was such a widespread problem, unfortunately I can't say it's very surprising given these difficult economic times. More surprising, however, is what this might suggest about the value these employers (who are presumably solos and smaller firms) place on the students they hire. Lexis, for example, charges a flat $175.00 per month for all you can eat state and federal research.  If students are hired just for their free Wexis access, it certainly says something about the economics of the law clerk job market.

But I digress. Here's an excerpt from the advisory committee opinion:

Numerous students have reported that practicing attorneys have conditioned initial or continuing employment as a law clerk upon the student’s violation of the agreement with the research services. In other instances, lawyers have knowingly used information retrieved from the electronic services in violation of the student’s contractual agreement.

. . . .

When a lawyer hires a law clerk, the lawyer is hiring the clerk for the clerk’s services and not for access to the electronic database. The lawyer has no expectation that the law clerk will breach the contractual obligations for the benefit of the lawyer. Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities.

. . . .

Misuse of the student’s educational privileges is a theft of services. (Utah Code Ann. §76-6-409) The companies have specifically limited the use of their products to non-profit or educational uses. The lawyer hiring a law student has no reasonable expectation that the law student will violate her contractual obligation to refrain from the use of those services in a for-profit situation. A theft of services is a violation of Rule 8.4(b). It is a criminal act, which, depending upon the amount of services wrongfully appropriated, could range anywhere from a Class B Misdemeanor to a Second Degree Felony. (Utah Code Ann. §76-6-412).

You can read the full opinion here.

Hat tip to BNA (subscription required).

(jbl).

http://lawprofessors.typepad.com/legal_skills/2012/01/utah-opinion-notes-numerous-law-students-report-employment-is-conditioned-upon-criminal-misuse-of-fr.html

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Comments

Yeah this is an interesting post, it really speaks volumes to the ethics which are abused in the legal community. I would hate to be the first year associate that is valued at $175.00. Thanks for the post, it was a good read.

Posted by: This Here | Sep 18, 2014 3:12:39 PM

This is one of a good post. The topic is interesting and I learned a lot from it. I don't have any idea about free Wexis access. Thank to you!

Posted by: Utah Bankruptcy | Feb 7, 2013 8:35:02 AM

The exclusive present the view wasn't virtually the students' carry directly is that the denote bar has no jurisdiction over these unlicenced assistants. But the view did go out of its way to say the lawyers had a tariff to prevent the students from misusing their Westlaw and Lexis accounts, and it completely unheeded the students' mistreatment. (See "What would necessitous, powerless Westlaw and Lexis do without the Utah Dos Bar's solicitude?

Posted by: greyshown | Mar 20, 2012 4:13:40 AM

The only reason the opinion wasn't about the students' conduct directly is that the state bar has no jurisdiction over these unlicensed assistants. But the opinion did go out of its way to say the lawyers had a duty to prevent the students from misusing their Westlaw and Lexis accounts, and it completely ignored the students' victimization. (See "What would poor, helpless Westlaw and Lexis do without the Utah State Bar's solicitude?" -- http://tinyurl.com/29a2hm2

Posted by: Stephen R. Diamond | Jan 6, 2012 7:54:20 PM

Great post. I suppose the sad thing here is that attorneys need an ethics opinion to know this is wrong.

Interestingly, when I was in law school a few years ago, there were quite a few attorneys who came to the school's law library to do research. I worked there as a student reference librarian on Saturdays and was surprised at the number of lawyers who would come to use secondary sources. Not sure what that says. (Maybe people just miss using books?) But I suspect there are enough attorneys who have a hard time affording electronic legal research.

Posted by: Mike | Jan 6, 2012 10:03:11 AM

Just to be clear, the $175 per month is for caselaw and statute, not for secondary materials. Secondary materials can be very important, especially depending on the type of practice. Add in law review on Westlaw and add another $50 to $100 depending on your salesman. Add in a collection of local state secondary materials and you're looking at another $50 to $300, depending on the package and state.

Oh, and like the rent on an apartment, the cost goes up each year even if the scope of services provided stays the same. So that $175 is $190 or $200 the second year. How many years in a row will you have summer interns?

And the contracts are in 1 to 3 year terms. Who will be using the account during the fall or spring? Another intern? And how much will it impact your overall account—will it boost you into a lower-paying tier, or will it boost you into a "premium" tier. Premium being the tier where the price actually increases per person because they figure if you have that many researchers then you can afford to print your own money.

This doesn't mean I condone the above practice. I think its stupid and unnecessary. Last time I looked into Westlaw they offered a free "paralegal" account (AKA nonattorney account) for each lawyer account. Further, don't require them to use their free school account—just tell them to get the research done. Let them go to the library to do it if necessary (and if they know how to do book research).

As for what happens if a student, even after being told to not use their free school account, does so—theft of services my rear. The contract when I was in law school (not so long ago) was vague enough that the student could soundly claim that their research for a paying employer was still educational in nature. On top of that, West and Lexis turn a blind eye towards this. They don't condone it, but neither do they hunt it down. (Because, trust me, they'd find almost every law student employed by a firm in violation.)

A student will use their free account because they're used to it. In fact, West and Lexis allow accounts to be customized and arranged in ways that create incentives to use the same account you always use.

I guess what I am getting at is that this opinion seems to be mostly about the shady practices of some small law firms and solos. These are the same folks who likely hire "unpaid interns" in clear violation of labor laws.

It does not appear to be, and shouldn't be, about the ethics behind students using their free Westlaw/Lexis accounts if they choose to do so.

Posted by: John | Jan 4, 2012 1:33:17 PM

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