Tuesday, January 3, 2012

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).

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