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Features - Ethical Concerns in Doing Legal Research

By Barbara Folensbee-Moore, Published on July 22, 1997
(Archived September 1, 1997)





Barbara Folensbee-Moore is the Head Librarian for Pepper Hamilton & Scheetz in Washington, D.C. Barbara has a J.D. from the University of Georgia and an MLS from Emory University. She is an active Internet and online research services advocate, and has taught CLE Internet programs over the past two years in Virginia.

Jump to Reader's Comments
The ABA Model Rules require that an attorney give a client competent respresentation. Legal research and knowledge of applicable law are part of the definition of a "competent attorney." In today's technology oriented world, can an attorney provide competent and ethical representation to a client using only print legal resources? This was the theme of a presentation I did as a member of a panel at a Patent, Trademark CLE program for the D.C. Bar.

In a profession where access to the most current information is an everyday concern, attorneys continue to insist that print legal materials are sufficient research tools and that the use of electronic resources is too expensive. However, over the past five to seven years, this particular attitude has been challenged in a number of articles and more recently, in case law. While the articles have cited cases from as early as the 1980's where attorneys have been found guilty of malpractice for failure to do adequate research, it wasn't until 1993 that West Publishing added a new key number under the topic "Attorney-Client" for cases where the failure to do sufficient legal research was grounds for complaint. Key number 112.50 - "research and knowledge of law" - contains reference to four cases where the courts have addressed the inadequacy of an attorney's research and two that have specifically discussed failure to use either Westlaw or Lexis to find the information that was missed.

Competency of the attorney and reasonableness of the research have been looked at using a standard of care analysis. Typically the court tries to determine if the attorney acted with the ordinary skill and knowledge possessed by other attorneys in similar circumstances. Reasonableness of the research is often determined by time available to the attorney and the actual efforts put forth in researching the issues. For an attorney to be adequately prepared under this standard of care analysis, they are required to do the necessary legal research and investigation of the factual basis of client's matter. At a minimum, this includes research in the print resources for cases, statutes or theories of law that support their client's position.

While many attorneys continue to resist the idea of updating research or obtaining information from an online source, many newer attorneys seem to forget the books even exist and prefer only electronic research. Neither solution is the best. The strengths and weaknesses of each type of resource need to be considered. A combination of print and electronic resources will often result in the most efficient research.

Reasonableness of the research is often determined by time available to the attorney and the actual efforts put forth in researching the issues.
Newsletter subscriptions and looseleaf services are relatively new resources that have tried to fill the gap between when cases are decided and when the publishers had them in print.

Print Legal Resources

Research in print sources is limited by the slowness of publishers to update their publications. Most print sources are at least three to six months out-of-date. Shepard's in print is generally four to six months out-of-date and even with some of the new update services being offered, the loss of current information often means that decisions which may have had an impact on your client's interests are not located using only print resources.

Legislative and administrative materials in the past have been available only in print or on specific request from the source. The costs of trips to government offices for documents have usually been passed on to the client. Deposit accounts or subscriptions to materials have allowed for eventual receipt of materials but no faster than anyone else.

Newsletter subscriptions and looseleaf services are relatively new resources that have tried to fill the gap between when cases are decided and when the publishers had them in print. Often the cost of newsletters or looseleaf subscriptions can be extremely high, but most firms pay the price and include the resources as part of the overhead necessary to do business.

Like treatises, newsletters and looseleaf subscriptions have had the added value of editorial content. Publishers have built their reputations on obtaining news quickly and passing it on to subscribers. Currency and coverage of issues across an area of practice has been the main value of such publications.

Traditional Electronic Resources

Traditional sources for online research have been Westlaw and Lexis/Nexis. Online research should not be seen as replacing traditional print research but instead enhancing the research and keeping the attorney current with fast changing issues and decisions. Westlaw and Lexis mirror each other in most of the legal resources they offer. Cases, statutes and federal administrative materials have been available for a number of years. Recently, administrative materials for states have begun to be available as well. Lexis has always had its Nexis or business and news databases and now Westlaw has begun providing similar information. Company information, asset checking on individuals and companys, foreign and domestic news sources, all are available at your desktop for a reasonable fee.

As both companies have begun to target less frequent users, such enhancements as natural language or free-style searching have appeared. Westlaw also introduced its "Easy Access" menu access to allow the novice or infrequent user to do research thru the use of menus. Costs are dropping as competition between the two companies increases and as more companies begin to offer versions of the same materials either online or on CD-ROM. Currency and speed of updating databases has meant it is now possible on both Westlaw and Lexis to be current within a week or so of changes in a specific circuit. Attorneys are able to determine all the cases where a certain judge has been involved or opposing counsel or expert witness. This means the same information can be used in a number of different ways, all not possible with the print version and all to the benefit of the client. For small firms or solo practitioners, special pricing arrangements have become common as a way to tap into the large market of non-users. Courts and judges are using the services and this has encouraged the idea that this updated information is no longer only for large well financed law firms.

Currency and speed of updating databases has meant it is now possible on both Westlaw and Lexis to be current within a week or so of changes in a specific circuit.
There are some drawbacks to using CD-ROM that do not exist with Westlaw or Lexis. They may be searchable online but the material is often just a mirror of the books so currency continues to be a concern.

Non-traditional Electronic Resources

A new research issue that has arisen is the use of CD-ROM products, the Internet and other non-traditional computer based services for legal research. Filling the gap between print resources and online resources, CD-ROM products have begun to increase in popularity over the past few years. As publishers move their products to CD-ROM, the costs have been reduced. Space and update cost savings have made CD-ROM versions of case books, statutes and treatises more attractive. The ability to search across a wide range of volumes or publications has enhanced a researcher's ability to locate materials which in the past would have been much more time consuming to find. Publishers which also have online services often have included an "update online" feature with CD-ROM subscriptions which allows the more cost conscious lawyer a way to take advantage of the currency of the online services without the high cost of a standard subscription.

CD-ROM products also have the same advantage that Westlaw and Lexis have, providing training and help lines for technical and research assistance. The cost varies widely depending on whether the product will be stand alone or on a network. There are often deals that are made if "libraries" of the publications are purchased.

There are some drawbacks to using CD-ROM that do not exist with Westlaw or Lexis. They may be searchable online but the material is often just a mirror of the books so currency continues to be a concern. There has been very little standardization of search software so you may have to learn different search software for each product you buy. Costs for network access to the CD-ROM information can make the choice very expensive. There will be some technical expertise required if you do not have in-house IS people to operate the system.

However, with such products being offered at very reasonable prices, can an attorney continue to ignore the availability of the information simply because of its format or to avoid the costs?

With regard to the Internet as a research choice, a great deal of the information that has become available is useful in the practice of law. A number of federal and state government resources are available on the Internet. These resources include not only information that can be obtained thru the services of Westlaw or Lexis, but also include information that is not available anywhere else online.

Many government departments are seeing the Internet as an inexpensive way to provide information to the public. Copies of documents, changes in rules and regulations, information about the departments and their actions all can be obtained thru the Internet. Legislative materials are available for most states. These provide information on new bills and their progress through the legislative process that can also be obtained thru Westlaw or Lexis but at a higher price. Smaller administrative units such as counties and towns are putting up ordinances and codes which were extremely difficult to locate in the past. Often they are not willing to provide a copy of the material but will instead direct you to their Web site as a source. Courts at the county and district level are providing cases online and information about their judges and system. While little retrospective uploading of information has been done, information from the past 1-2 years tends to be available.

Smaller administrative units such as counties and towns are putting up ordinances and codes which were extremely difficult to locate in the past.
Cases, court dockets, state and federal statutes and more are all provided on the Internet. It does take time to learn how to use the Internet successfully. There are however, issues that arise in using the Internet for legal research that do not occur when using Westlaw and Lexis. You are not in a controlled environment. The information you are using may or may not be accurate. You have to constantly be aware of the source of the information and also the currency of the information.

Where the issue of cost may have been an excuse for attorneys not to use online services in the past, the same excuse does not apply for the Internet. The cost for access to the Internet is minimal. There are few attorneys left that do not have computers in their office and the only equipment needed is a modem and phone line. Cases, court dockets, state and federal statutes and more are all provided on the Internet. It does take time to learn how to use the Internet successfully. However, there are a number of sites that are main starting points for most legal resources on the Internet and which allow the most basic beginner to obtain quick access to information.

Where courts may have been and still may be reluctant to require attorneys to use Westlaw or Lexis, especially in instances where clients have specifically stated that they will not pay extra for online legal research, will this continue to hold true where research sources are available on the Internet? There is no additional cost for researching the Internet therefore the clients can avoid being charged for anything except the attorney's time, which they would pay for anyway.

Conclusion

As computers and online resources become more prevalent and commonplace, attorneys are going to be expected to know and use the resources. Clients will expect such services to be part of the package they are paying for when they hire an attorney to represent their interests. Being a competent attorney in the 21st century will include using all the research tools available to give your client the edge they need.

 

Reader's Comments

---------- Forwarded message ----------
Date: Thu, 24 Jul 1997 13:51:39 -0700
From: Peter Krakaur <ils@LEGALETHICS.COM>
To: NET-LAWYERS@PEACH.EASE.LSOFT.COM
Subject: Re: [NET-LAWYERS] LLRX Email Update 7/23/97

I read the thoughtful article and have a couple of observations.

The primary focus of the article was to address the question "can an attorney provide competent and ethical representation to a client using only print legal resources." After reviewing some issues regarding print, traditional online services, and the Internet, the author concluded:

"Where the issue of cost may have been an excuse for attorneys not to use online services in the past, the same excuse does not apply for the Internet. The cost for access to the Internet is minimal. There are few attorneys left that do not have computers in their office and the only equipment needed is a modem and phone line....... "

Where courts may have been and still may be reluctant to require attorneys to use Westlaw or Lexis, especially in instances where clients have specifically stated that they will not pay extra for online legal research, will this continue to hold true where research sources are available on the Internet?

I am not so confident that all attorneys have comupters in their offices and that the only cost is a modem and elephone line. In many law firms, computer access and use is not an issue. They have the benefits of access to a variety of resources. The notion of dropping $100 or $200 on a modem and paying additional monthly fees for another telephone line for Internet access is not much of an issue. Solo practitioners, small firms, attorneys with state and local entities, and legal service organizations focused on legal services/public interest law, by contrast, are not always so lucky. (Though I do not necessarily limit my comments to those fields of practice).

Although I continue to remain excited about the Internet and the resources it has to offer to the profession and the public, I remain wary of suggestions that access to the Internet or comupter research is a pre-requisite for attorneys to remain competent and fulfull their ethical obligations.

Regards, Peter Krakaur
Internet Legal Services ils@legalethics.com
Legalethics.com: http://www.legalethics.com/
INTRALAW(sm): http://www.intralaw.com/
The Practicing Attorney's Home Page: http://www.legalethics.com/pa/


Date: Thu, 24 Jul 1997 12:21:38 -0700
From: Barbara Silbersack <bsilbersack@thf.com>
To: ethical@llrx.com
Subject: comment re internet usage

In the case of the internet and the availability of official sources of information, e.g., some of the state statutes, has anyone given any thought to the concerns raised when research is conducted online with associated charges as opposed to being conducted on the internet with no charges, attorney time being equal? I'm thinking of so many of the government resources available now.