2/20/10

Can Attorneys Practice Law Without Westlaw or LexisNexis?

With all of the fuss surrounding the launch of new premium legal research tools and the increased pricing, or 'modest premium', that comes with these resources, it got me to thinking whether a practicing attorney really needs to use one of the Wexisberg products in order to practice law.  I'm sure there are thousands of attorneys that don't have subscriptions to these services, but my social and professional circle doesn't seem to cross paths with these attorneys. I think this is a serious question, and I'd love it if someone has examples of attorneys that practice without specifically subscribing to either Westlaw or LexisNexis.

As far as I know there is no State Bar requirement or ethics opinion that says specifically that not using Westlaw or LexisNexis constitutes a violation of professional responsibility.  One can still Shepardize cases the old fashion way (hopefully your county law library still subscribes to the print version.)  And, although the theory behind having Westlaw or LexisNexis is that it makes your legal research easier, there is also the perception that not having such a tool exposes you to malpractice issues.  But does that perception match up with reality?

Let's say that instead of spending thousands of dollars for Westlaw or LexisNexis (or Bloomberg), how about if I rely solely on one of the more basic research tools?  In Texas, one of the benefits of being a member of the bar is having access to "Free Legal Research".  Any problems with an attorney relying upon this service as his or her sole source of online legal research?  Are you already doing this??
[gl]

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22 comments:

Robert Richards said...

Greg: Thanks for raising this important issue. One might wish to consider the express requirements and the implications of Tex. Disciplinary R. Prof. Conduct Rule 3.03(a) and (c) http://j.mp/d75bqt .

The statements above are not legal advice or legal representation.

Don Cruse said...

Greg: Have Westlaw or Lexis reps ever told you that it might violate professional responsibility not to buy their products?

For what it's worth, I don't think Rule 3.03 is an answer. That's a pretty narrow rule, and -- in most practice areas -- once you are holding a court case or statute that you plan to cite in a brief, it's pretty easy to check that same jurisdiction for controlling contrary authority.

On the other hand, I don't think it's possible to do great research with entirely free tools -- yet. But it shouldn't be necessary for a solo to sign the two-year full-freight contract with West to dispense competent legal advice. Most practice areas don't demand that. And there are lots of intermediate options from other providers. You just have to be cognizant of their limits when choosing the right tool for each research job.

Westlaw can make the process significantly easier, but it charges significantly more. That's an equation that may come out differently depending on the variables in each lawyer's practice.

Richard Maseles said...

I also don't think that Rule 3.03 is germane to the issue of whether an attorney needs high-cost legal research. The only features Wexis offers that Fastcase, Lois, etc. don't offer are good shepardization, a taxonomy like Key numbers, and access to secondary resources like ALRs and legal encyclopedias. Those are nice when you can afford them, but 22+ years practicing law leads me to believe that they're not necessary for a real-world law practice.

Can you do without shepardizing cases? No...but I've seen and used search method workarounds in Fastcase that pretty much duplicate the results of shepardizing.

It sounds like typical Wexis sales tactics to tell you that not buying their stuff is malpractice.

Robert Richards said...

Mr. Maseles stated that Rule 3.03 is not “germane to the issue of whether an attorney needs high-cost legal research.” With all due respect, I disagree. Here is my reasoning:

I think the topic of this discussion is: “Which legal research tools are necessary for the practice of law?”

Syllogism:

Major Premise: A legal ethics rule is germane to a discussion of which legal research tools are necessary for the practice of law, if that rule expressly or implicitly requires a lawyer to conduct legal research.

Minor Premise: At least three provisions of Rule 3.03 appear implicitly to require a lawyer to conduct legal research: (a)(1) prohibition of false statements of law; (a)(4) disclosure of adverse authority; (c) provision that the requirements of (a)(1) and (a)(4) are ongoing.

Conclusion: Rule 3.03 is germane to a discussion of which legal research tools are necessary for the practice of law.

If there are errors in this reasoning, I would be grateful to learn of them.

The statements above are not legal advice or legal representation.

Richard Maseles said...

ok...so what unique features in Wexis ARE essential to avoiding malpractice? I bet I can show how they can be approximated, sufficiently to satisfy the Texas rule, with one of the Brand X engines.

Greg Lambert said...

I think that the Rule 3.03 comes into play if you think that using a product that is incomplete either inaccurate or incomplete and that you know that this product has somehow caused an error in your performance as a member of the bar (aka malpractice.) It's a big jump to say that any non-Wexis database exposes you to 3.03 violations (as we've probably all seen or heard of Wexis also being incomplete or inaccurate at one time or another.)
So far, the only reasons I've heard that say you "have" to have Wexis is (1) coverage, (2) Shepards/KeyCite (3) makes practicing law easier
Seems to me that if a smaller online research tool had a good Shepard-like tool, and complete coverage, then they'd shoot a big hole in the idea that you need to have Lexis or Westlaw in order to safely practice law.

Joe Hodnicki said...

Many already do Greg. Particularly in the small firm, solo, and local gov't market where reliance on Casemaker or Fastcase by way of tie-in to state bar association memberships is commonplace. In Ohio, I see many, including some in our county prosecutor office, rely solely on OSBA provided Casemaker for case and statutory research.

PR does not dictate what one uses to conduct research, just that one follows the accepted protocols. Casemaker, for example has a "citator" of sorts.

In the context of Google SLOJ, Robert Richards once commented that open access case law only needs a good citator to round out what is needed at the professional level for legal research of caselaw.

Tim Baran said...

Great post and discussion. A related question is "Can legal research services create a business model without a costly subscription to one of these services?

Not yet, unfortunately. Not until there's a comprehensive Shepards/ Keycite alternative

It's one of the factors that led to my choosing an MCLE venture over law library services biz when I left the law firm environment.

Christopher G. Hill said...

Assuming free = incomplete may be the false premise. If you assume that more cost friendly services are complete and that access to law libraries helps, then expensive does not necessarily equal better.

Lisa Solomon said...

Richard Maseles's observation that "[t]he only features Wexis offers that Fastcase, Lois, etc. don't offer are good shepardization, a taxonomy like Key numbers, and access to secondary resources like ALRs and legal encyclopedias" is critical. Because others have addressed Shephardizing, I'll discuss only taxonomies and secondary sources.

Before computers/CALR, lawyers didn't have the ability to search the text of decisions. Thus, a taxonomy like the West Key Number system was necessary in order to enable lawyers to directly access the primary law (or at least those cases that were not discussed in treatises). The continued usefulness of taxonomies is demonstrated by the fact that law students are still taught how to access the law using these systems. When law schools feel comfortable enough teaching new lawyers that reliance on text searching (natural language or boolean) is sufficient to responsibly practice law, then I'll feel comfortable giving up my Westlaw subscription in favor of a taxonomy-free service.

The analysis is similar for secondary sources. If you have access to all of the treatises and encyclopedias that are generally considered to be foundational in your state and practice area through a source other than Westlaw/Lexis/Bloomberg (perhaps in your bookcase), more power to you. But how many lawyers these days (especially those in solo and small firm practice) have easy access (i.e., at the same physical location as their office) even to their state's annotated code, much less to a wide variety of hard-copy treatises?

Simply put, it's a fallacy to assume that lawyers who rely primarily on low-cost or free online legal research tools will recognize the limits of those tools, and trek to the law library when necessary.

Finally, from a purely practical standpoint, even assuming that a lawyer who is conducting legal research without using a taxonomy or secondary sources will eventually find the same cases as one who is using all of the available tools, I suspect that it may take significantly longer to do so. Since most lawyers still charge on an hourly basis, I want my lawyer to be using tools that will increase his or her efficiency.

Anonymous said...

Non-US attorneys. Admittedly that's only about 50% of the universe of lawyers, but...

Richard maseles said...

Lisa and I are in agreement that taxonomically organized resources are greatly beneficial (I love ALR)-- but does not using them equal a disciplinary violation, i.e., "the express requirements of Tex. Disciplinary R. Prof. Conduct Rule 3.03(a) and (c)?" I don't think so and have seen nothing here to persuade me otherwise. Solos and small firms are under enough financial pressure as it is without being threatened with censure for not buying the high-priced spread. And for the really important case, they can always hire Lisa.

And let's get something else straight-- Wexis' editorial additions aren't perfect, and definitely not encyclopedic. I hope none of you are assuming that the key number digest shows all the statements of law for that subtopic, or that they're always accurate-- and the same goes for Lexis' taxonomy, the name of which escapes me, although I spent some five years working on it. The same goes for the citators. Both companies have ongoing competitive intelligence programs, looking for errors in the other's work, which they use for marketing purposes. (I did that too) The intelligent researcher uses these tools as starting points, but remember that they're both incomplete and fallible, whether the work is done by a computer algorithm or an underpaid legal editor.

John M. Perkins said...

I believe it is at least evidence of malpractice not to citationize a case that you rely on in a trial, a brief or an oral argument. But those instances are rare. The cases relied upon can be narrowed down to just those with a risk of being red flagged.
Then it's just $6/cite to Shepardize with a credit card, or $43/day (for a solo). You do not need a big WEXIS contract.
BTW, print Shepard's are not only 6 weeks out-of date, but also more expensive per year than a yearly solo's contract.

Jason said...

Did anybody read Erin Smith's post on this topic over at Business Insider Law Review today? This quote blew me away:

"While it is not necessarily malpractice to practice without those research services, it could be if we did it, and we imagine the same is true for anyone else who graduated from law school in the last 10 years. It's what you know, and it's what you are taught from the first day of law school."

I'm wondering how many young lawyers feel the same way.

Carolyn Elefant said...

Back in 2000, I wrote an article (no longer online), "Saved by the Web: How I Researched and Wrote an Online Legal Brief for Free." I described how using Versuslaw, a site called Juris (later shut down by LEXIS) and using "poor man's shepard's" (i.e., running a search on a case name), I researched and wrote a Second Circuit brief.

I say this to show my bonafides as an aficionado of free legal research. However, even so, there were some distinctions. For starters, I had the benefit of well researched summary judgment motions from the case below that gave me a head start on the research. I also made a library trip and researched the issue of economic damages under NY law through books. If I'd had to research the same issue from scratch, I'm not sure that I'd have produced the same results using Versuslaw alone.

Having said that, Fastcase is a much, much improved and more robust app as Versuslaw. At the same time, large law firms and judges likewise have access to more robust tools like WestlawNext. I consider myself an excellent researcher, having never been blindsighted by a case until a few months ago, when OC cited a yet unreported case on Westlaw or Lexis from another federal district court that had been issued a few months before. The only way that OC could have found this case was by searching briefs which cited the prime cases in this matter (it was obscure, so not many cases). The briefs from the unreported case would have come up and most likely, the lawyers then took the docket number to PACER and found the decision. (I was able to distinguish it, but even so, not finding it was embarrassing).

My point is that even as the "second city" research data bases improve, the big boys continue to up the ante. Yes, it's one thing to compete against a prosecutor's office that's using Casemaker while you use Fastcase, but it's quite another not to have access to the same scope of resources as your opponent. It's not malpractice per se, but just another injustice, I suppose.

The other point is that many lawyers, like me, have regulatory practices. We rely on BNA reporters, PUR Reports, SEC Reports and the like. Westlaw and LEXIS don't have these reports and without them, it's impossible to find administrative cases. Not all law is judicial.

Robert Richards said...

Respecting Ms. Elefant's statements about regulatory materials, I'd make some observations of fact. I note that I see BNA reports on Lexis, http://j.mp/bPOs5G , and Westlaw, http://j.mp/cwvGvg . I see PUR on Westlaw: http://j.mp/9uK2vM . Lexis does not appear to include PUR, but it does appear to have many current secondary materials on public utility regulation: http://j.mp/dyeZRt . By "SEC Reports," I'm not sure what source is meant, but CCH's Federal Securities Law Reporter and BNA's Securities Regulation & Law Report and its daily version appear to be on Lexis, http://j.mp/b6s7rw . BNA's Securities Regulation & Law Report and its daily version appear to be on Westlaw, http://j.mp/9v5ahI , and though Westlaw does not appear to have CCH's Federal Securities Law Report, Westlaw does appear to have several other current federal securities law secondary sources: http://j.mp/cWd9FN . State securities law materials also seem to be included on Lexis, http://j.mp/b6s7rw , and Westlaw, http://j.mp/9cBdcJ . In addition, given the importance of state regulations and administrative law today, I note that Lexis, http://j.mp/aTBKOT , and Westlaw http://j.mp/b5C316 , appear to have extensive collections of current, and in some instances retrospective, state regulations and administrative law.

Richard Maseles said...

I forgot to mention...if you can shepardize fast, you can get 20 minutes' worth of pretty full Lexis access, every 24 hours, from the [url=http://www.jenkinslaw.org/]Jenkins Law Library[/url] for $155 per year. I've talked to a couple of lawyers who use Fastcase for primary legal research and Jenkins for shepardizing. And as someone pointed out upthread, you can do Westlaw by credit card, something I did once to latch onto an ALR annotation so I could have it and get the citations from it.

Robert Richards said...

I'm a Jenkins member. The remote Lexis access that comes with my Jenkins membership includes most U.S. federal and state primary materials, but excludes federal treatises and most other federal secondary materials, among them the administrative/regulatory materials discussed above. Jenkins membership also includes access to Westlaw from terminals located within the Jenkins facility, and that Westlaw subscription includes many federal (and state) secondary resources. Jenkins also maintains print subscriptions to some federal secondary resources, as well as to a rich set of print secondary resources for Pennsylvania and nearby states.

Robert Richards said...

And I should also say that yes, for us Jenkins members, for research tasks that can be done exclusively with statutes and published cases, many of us use Fastcase and Shepard's as Mr. Maseles states. In addition, many of us rely on remote access to Lexis for state secondary sources, unpublished cases, caselaw subject searching, and primary regulatory/administrative materials.

Carolyn Elefant said...

Robert,

Thanks - I definitely mis-wrote. Westlaw and LEXIS ARE the only online services that have this stuff - the other don't.

Mark Whitney said...

APPLES TO APPLES:
TheLaw.net Outperforms Westlaw™ and WestlawNext™ In 'Relevance' and 'Most Cited'
See, http://www.thelaw.net/westflaw/20100301_supervised_release_case_study.html

Mark Whitney said...

APPLES TO APPLES:
TheLaw.net Outperforms Westlaw™ and WestlawNext™ In 'Relevance' and 'Most Cited'
(Click the name)

 

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