« Wednesday's Three Burning Legal Questions | Main | Thursday's Three Burning Legal Questions »

Utah Bar Tries to Put End to Lawyers Freeloading on Law Students' Free Access to Lexis/Westlaw

For decades, law students have received free access to Lexis and Westlaw as a perk of being a student. Lexis and Westlaw offer this free access to further students' education and, I have always assumed, to get each new generation of lawyers hooked on their services. Of course, both services understandably limit students' free use to "educational" or "academic" purposes, and specifically prohibit students from using the free service in connection with employment outside of law school.

Via the Legal Skills Prof Blog I see that in the state of Utah, however, "numerous students have reported that practicing attorneys have conditioned initial or continuing employment as a law clerk upon the students" agreeing to use their free Lexis or Westlaw access to perform the firm's work. As a result, the Utah State Bar Ethics Advisory Committee issued an opinion in November 2011 specifically stating that "a lawyer who encourages or participates in a law student’s violation of the student’s contractual obligation to the electronic research service violates the Rules of Professional Conduct."

The Committee's opinion states that

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.

The opinion concludes that requiring a student to misuse Lexis or Westlaw as described above -- or knowing of such a violation and failing to take reasonable remedial actions -- is a violation of Rule 5.3 of the Rules of Professional Conduct, pursuant to which a lawyer with supervisory authority over a non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer. In addition, it may constitute a "theft of services" under Utah law, "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."

I'm not aware of any similar opinions in other states, but it seems highly unlikely that this is a problem that is limited to the state of Utah. Lawyers who have been freeloading off of students' free Lexis and Westlaw access need to stop that practice or face potentially serious consequences.

Posted by Bruce Carton on January 4, 2012 at 02:34 PM | Permalink | Comments (5)