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By Joan C. Rogers
Practicing lawyers violate their ethical duties of honesty and supervision—and may even be guilty of a crime—if they pressure their law student clerks to do electronic research via their free law school accounts, the Utah state bar's ethics committee declared Nov. 15 (Utah State Bar Ethics Advisory Op. Comm., Op. 11-03, 11/15/11).
The committee emphasized that as a condition of using services such as LEXIS and Westlaw, students have to agree not to use their free access for commercial purposes. Misuse of a student's educational research privileges constitutes a theft of services, and lawyers must not encourage or tolerate that conduct, the committee made clear.
The opinion explains that as a condition of access to certain electronic research services, students are required to contractually accept limitations on using the services. For example, Westlaw confines student use to “educational purposes,” and LEXIS limits student use to “academic purposes.” The contracts forbid students to use their passwords for employment outside law school or for commercial purposes.
Numerous students have reported, the committee related, that practitioners are conditioning employment upon students' willingness to do research in violation of their agreements with electronic services.
The opinion finds it wholly improper under the Utah Rules of Professional Conduct for lawyers either to lean on law students to misuse their free access or to accept the fruits of the student's access with knowledge of its improper source.
“Misuse of the student's privileges is dishonest,” the committee declared.
“Requiring, 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” in violation of Rule 8.4(c), the opinion states.
The committee denied that lawyers who pressure students to use their free access are protected under Utah Ethics Op. 98 (1989), which advised that disputes over an attorney's failure to pay a third party for services rendered on behalf of clients should be treated as questions of substantive law, examined under traditional contract and agency doctrines, rather than as questions of ethical propriety. That opinion specifically excluded conduct that amounts to dishonesty, fraud, deceit, or misrepresentation by the attorney, the committee observed.
The committee also took the position that misuse of the student's educational privileges is a violation of Rule 8.4(b), which makes it professional misconduct to commit a criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.
Misuse of the student's free access is a theft of services under a Utah criminal statute, the committee explained. It said that depending on the amount of services wrongfully appropriated, the offense could range from a misdemeanor to a felony.
This criminal act reflects adversely on the lawyer's honesty if the lawyer specifically directs the student to violate her contract, the committee said. “It is also a criminal act and an ethical violation if the lawyer indirectly encourages the contractual breach through the coercion of the law student,” the opinion states.
In support of this conclusion, the committee cited Utah Code Ann. §76-2-202, which states:
Criminal responsibility for direct commission of offense or for conduct of another. Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.
The committee also found that misuse of the student's research privileges implicates Rule 5.3, which imposes special obligations on lawyers who supervise nonlawyer assistants.
“Allowing, expecting or not rectifying the student's contractual breach of the contract violates the duty of supervision imposed upon the lawyer-employer,” the opinion states.
The committee explained that under Rule 5.3, a lawyer with supervisory authority over a nonlawyer must make reasonable efforts to ensure that the person's conduct is compatible with the lawyer's professional obligations. A lawyer violates Rule 5.3, the committee said, if he orders a student to misuse the electronic access, or if he knows of the misuse and either ratifies it or fails to take reasonable remedial action.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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