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OSB Professional Liability Fund Gives Bad Advice About Working With Contract Lawyers

Written by Lisa Solomon on October 15th, 2012 · 1 Comment


In an article in In Brief entitled Contract Lawyers: Independent Contractors or Employees?, authors Lisa C. Brown and Jim W. Vogele give some excellent advice about steps a firm can take to ensure that a lawyer it hires as a freelance attorney is, in fact, an independent contractor, rather than an employee. However, a firm following Brown and Vogele’s instruction that “[t]he firm must bill for the work of the contractor as a vendor, not as an employee” may find itself in ethical hot water.

No Oregon ethics opinion directly addresses the numerous ethical issues that arise when a firm hires a freelance lawyer. However, Oregon’s Rules of Professional Conduct are similar to the ABA’s Model Rules of Professional Conduct. As I’ve previously explained, in Formal Ops. 00-420 and 08-451, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that: (1) a law firm that engages a freelance lawyer may add a surcharge to the fee it pays to the freelance lawyer, provided the total charge represents a reasonable fee for the services provided to the client; and (2) the hiring firm is not obligated to inform the client how much the firm is paying the freelance lawyer. However, no markup is permitted if the firm decides to pass the cost of hiring a contract lawyer through to the client as a disbursement: a markup is permitted only if the freelance lawyer’s services are billed as a legal fee.

Returning to Brown and Vogele’s advice, in my experience, law firm bills generally classify billing entries as either fees or disbursements. Further, charges from vendors are reflected on the bill as disbursements, not as fees. Thus, a firm that bills for the work of a freelance lawyer as a vendor (as Brown and Vogele advise) is likely to bill for the freelance lawyer’s work in the “disbursements” portion of the bill. Under those circumstances, the firm may not mark up the freelance lawyer’s fee.

Furthermore, as Brown and Vogele note, the various state and federal agencies that audit working relationships to determine whether a worker is an independent contractor or an employee use different tests, most of which look to multiple factors. Brief analysis shows that none of the tests Brown and Vogele reference look to the manner in which a worker’s services are billed to clients. See Employer’s Supplemental Tax Guide (IRS); State Agency Criteria for Independent Contractors (chart).

Thus, because: (1) a firm that bills for a freelance lawyer’s work in the same manner it bills for work performed by other vendors (i.e., as a disbursement) may not mark up the freelance lawyer’s fee; and (2) the manner in which a worker’s services are billed to clients is irrelevant to whether a freelance lawyer is properly classified as an employer or independent contractor, Oregon lawyers should not follow Brown and Vogele’s advice to bill for a freelance lawyer’s work in the same manner it bills for work performed by other vendors.

ABA Adopts Model Rules Comments Concerning Outsourcing

Written by Lisa Solomon on August 6th, 2012 · 4 Comments


As the ABA Journal reports, today, the ABA’s House of Delegates adopted Resolution 105C, which amends the comments to ABA Model Rules 1.1, 5.3 and 5.5 to clarify lawyers’ obligations when outsourcing work, whether domestically or internationally.

The resolution’s adoption caps a process that began in November 2010, when the ABA’s Commission on Ethics 20/20 issued a discussion draft of proposed changes to the Model Rules of Professional Conduct (or, more accurately, the comments to the Model Rules) as they relate to domestic and international outsourcing. As I explained in my analysis of the discussion draft, the proposed changes didn’t introduce anything new or surprising; rather, they primarily elevate many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments.

Selected Highlights of the New Model Rules Comments Concerning Outsourcing

The House of Delegates adopted the following new comment to Model Rule 1.1 (competence):

[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

wwwDisclosure and Client Consent

In its report to the House of Delegates, the Commission explained that “consent will typically be required, and will almost always be advisable” when outsourcing, although it “may not be necessary when a nonfirm lawyer is hired to perform a discrete and limited task, especially if the task does not require the disclosure of confidential information.” The requirement to obtain the client’s informed consent to outsourcing in most cases is stronger than that imposed by ABA Formal Op. 08-451, which required disclosure of the use of a freelance lawyer only if the freelance lawyer was to perform independent work for the outsourcing lawyer without the “close supervision” of the outsourcing lawyer or another lawyer associated with the outsourcing lawyer’s firm.

wwwSupervision of nonfirm lawyers and nonlawyers outside the firm

The most recent draft resolution concerning outsourcing (issued in February 2012) contained the following sentence at the end of comment [6]: “When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also should also reasonably believe that such services meet the standard of competence under this Rule.” This sentence was omitted from the version submitted to, and adopted by, the House of Delegates, no doubt in response to a few comments the Commission received in response to the February 2012 draft resolution objecting to it.1

The omission of the last sentence from comment [6] is significant because the Commission previously explained that the last sentence required outsourcing lawyers to “conclude that the services that the nonlawyer [sic; should read “nonfirm lawyer”] actually performed after being retained were performed competently.” Although the new comment [3] to Rule 5.3 now explicitly requires a lawyer who uses nonlawyers outside a firm to assist the lawyer in rendering legal services to “make reasonable effort to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations” (which, of course, include the duty to provide competent representation), that comment does not impose on the outsourcing lawyer an obligation to conclude that a nonfirm lawyer’s work meets the standard of competence required under Rule 1.1.

To put this distinction into context with a real-life example, I am admitted in New York, EDNY, SDNY, the Second Circuit and the U.S. Supreme Court. When a New York lawyer retains me to provide legal research and/or writing services, under comment [6] to Rule 1.1 (as adopted), the lawyer does not have a continuing obligation to conclude that any services I actually perform after being retained are performed competently. This means that, if (for the sake of argument only) I ever perform services for a New York lawyer in an incompetent manner, any failure of the hiring attorney to discover that my work does not meet the standard of competence under Rule 1.1 will not constitute an ethics violation.

The result is different when an outsourcing lawyer hires a freelance lawyer who is not admitted in the same jurisdiction as the outsourcing lawyer. For example, a Utah lawyer recently retained me to conduct research for, and draft, a brief to the Utah Supreme Court. Because I am not admitted in Utah, I am considered a “nonlawyer” in that state. Under the new comment [3] to Rule 5.3, if (again, for the sake of argument only) I do not perform the work competently, any failure by the outsourcing lawyer to make reasonable efforts to ensure that I have performed in a manner consistent with the lawyer’s obligation to provide competent representation may constitute an ethics violation.

None of this should discourage lawyers from outsourcing to out-of-state freelance lawyers. Remember, adequate supervision over a non-lawyer is judged on a reasonableness standard. As the new comment [3] to Rule 5.3 explains, the extent of supervision required “depend[s] on the circumstances, including the education, experience and reputation of the nonlawyer [and] the nature of the services involved….” This means an out-of-state junior lawyer with little or no experience in the substantive practice area and no track record to speak of will require more supervision than a seasoned attorney with extensive substantive experience in the relevant practice area and an extensive track record. It also means that, while—as comment [6] to Rule 1.1 makes clear—a hiring attorney should do diligence when hiring any freelance lawyer, sufficient due diligence is particularly important when hiring an out-of-state freelance lawyer.

The Commission’s Report to the House of Delegates Supports Domestic Outsourcing

As I noted in my analysis of the discussion draft, although, in the introduction to its Draft Report, the Commission disclaimed any intent to either endorse or reject the practice of outsourcing by solos and small firms, the Draft Report went on to discuss the benefits of outsourcing. The Commission maintained that position throughout the revision process. In the report it submitted to the House of Delegates, the Commission observed:

Lawyers have found that the same technology-driven efficiencies that have led to an increase in outsourcing throughout the global economy are also making outsourcing an appealing option within the legal profession for certain work. In particular, lawyers have found that, if they exercise proper care in the selection of a provider, work can be completed with greater speed and lower costs without sacrificing quality. These efficiencies offer opportunities for solo practitioners and small and medium-sized U.S. law firms, allowing them to better compete for large matters without fear that they will lack adequate resources to perform the legal work involved. Also, by reducing the cost of legal services, outsourcing can improve access to justice by making legal services more affordable

….The Commission’s research indicates that lawyers still tend to outsource legal and law-related work domestically more often than they outsource work internationally. In fact, information reviewed by the Commission indicates that, more recently, the outsourcing industry is responding to client demand for greater availability of on-shore operations.

Conclusion

Although the additional comments to the Model Rules aren’t, in and of themselves, revolutionary, by amending the Model Rules comments to discuss lawyers’ obligations when outsourcing, side-by-side with their obligations when working with lawyers and other personnel inside a firm, the ABA has acknowledged the importance of outsourcing to the practice of law, both today and in the future. That is revolutionary.


1Not surprisingly, the Attorneys’ Liability Assurance Society objected on the ground that, in its view, the sentence effectively requires lawyers to guarantee the quality of outsourced work.

The objection of Prof. Andrew Perlman, the Ethics 20/20 Reporter, focused on the sentence’s impact on lawyers or firms that “refer” work to non-firm lawyers for a variety of reasons, including to obtain an opinion from local or specialized counsel on a matter in which the “referring” lawyer lacks expertise. The objection’s use of the word “referring” demonstrates Perlman’s fundamental misunderstanding of the term “outsourcing,” the hallmark of which is the hiring lawyer’s ability to competently supervise the work performed by the nonfirm lawyer. Where a matter requires specialized or local expertise, it would be more appropriate to enter into a co-counsel relationship (with each firm having a direct attorney/client relationship with, and ethical obligations to, the client) than an outsourcing relationship.

Valuable Free Appellate Practice Resources from the Federal Judicial Center

Written by Lisa Solomon on June 13th, 2012 · 1 Comment


The Federal Judicial Center is the research and education agency of the federal judicial system. By statute, the FJC is charged with:

  • conducting and promoting orientation and continuing education and training for federal judges, court employees, and others;
  • developing recommendations about the operation and study of the federal courts; and
  • conducting and promoting research on federal judicial procedures, court operations, and history

To further its mission, the FJC publishes studies, reports and even treatises on substantive areas of the law, and also maintains a YouTube channel. All of the written materials can be downloaded for free from the FJC’s website. While many publications (such as the 32 items about caseloads and case weights) are primarily of interest to judges and other court personnel, two items are of particular interest to appellate lawyers:

A Primer on the Jurisdiction of the U.S. Courts of Appeals
(2d ed. 2009): This 102-page manual provides an introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. Courts of Appeals. The monograph examines procedural issues related to the exercise of appellate jurisdiction in appeals from final judgments and interlocutory appeals. Coverage includes civil and criminal appeals, extraordinary writs, and federal administrative agency reviews. This edition contains new sections on the future of the Courts of Appeals, judicial rulemaking, non-party appeals in criminal matters, and an updated bibliography.

Case Management Procedures in the Federal Courts of Appeals
(2d ed. 2011): This 227-page report details the varying appellate practices and procedures of the U.S. courts of appeals within the generally uniform appellate scheme imposed by the Federal Rules of Appellate Procedure. Part I of the report highlights key variations from court to court; Part II describes in detail the case management procedures of each court.

Just about every litigator (not just appellate practitioners) should find the Reference Manual on Scientific Evidence (3d ed. 2011)—which weighs in at a whopping 1034 pages—and Managing Discovery of Electronic Information: A Pocket Guide for Judges (2d ed. 2012) to be helpful. Finally, depending on the focus of your practice, you might also be interested in Major Issues in the Federal Law of Employment Discrimination (5th ed. 2012) and Section 1983 Litigation (2d ed. 2008).

Pictures in Posner’s Opinions: Pointless

Written by Lisa Solomon on May 11th, 2012 · 1 Comment


An ostrich (and a lawyer), both with their heads in the sand. Bob Marley. A man wearing full safety clothing. A lion eating a giant meat-cake.

What do these four images have in common? If you answered: “they’re all the subjects of photos that Seventh Circuit Judge Richard Posner has gratuitously included in opinions,” you’d be right.

Posner’s Pictures

In a November 2011 opinion, Judge Posner—using both words and pictures—harshly criticized the lawyer for one of the parties for failing to cite controlling precedent in both his opening and reply brief:


ostrich with its head in the sand

lawyer with his head in the sand

In a January 2012 opinion addressing whether prison officials may allow Rastafarians, but not members of other religions, to wear their hair in dreadlocks, Judge Posner used a photo of Bob Marley to underscore his statement that “dreadlocks can attain a formidable length and density”:


Bob Markey image in brief

Bob Marley image © David Corio

In an opinion released earlier this week, the primary issue was whether the Fair Labor Standards Act requires that the plaintiff steelworkers be compensated for the time spent changing into protective clothing. After describing the clothing in detail (“…flame-retardant pants and jacket, work gloves, metatarsal boots [work boots containing steel or other strong material to protect the toes and instep) a hard hat, safety glasses, ear plugs, and a ‘snood’ [a hood that covers the top of the head, the chin and the neck”]), Judge Posner, asserting that “a picture is worth a thousand words,” inserted into the opinion “a photograph of a man modeling the clothes”:


Posner steelworker photo

Posner’s Problem

I suggest in Pixel Persuasion: Legal Writing for the 21st Century that, under certain circumstances, including a picture in a brief can make the brief more persuasive. Similarly, when appropriately used, photographs can help make opinions more accessible, both to lawyers and to the general public.

Unfortunately, Judge Posner’s use of pictures in opinions isn’t particularly effective, because it’s gratuitous. In the November 2011 opinion, Judge Posner included the picture merely to illustrate a worn-out cliché. There was no rhetorical reason to include a photo of Bob Marley with dreadlocks flying in the January 2012 opinion because the fact that “dreadlocks can attain a formidable length and density” was not disputed. Similarly, because the appearance of the clothing whose donning and doffing were at issue in this week’s opinion wasn’t in dispute, there was no rhetorical reason to include a photo of a model wearing it, especially after describing it in detail.

As Reuters reported, in 2007, Judge Posner “cut and pasted a photo of Kwanzaa, a lion at a Texas zoo, celebrating its birthday with a cake made from 10 pounds of horsemeat topped with whipped cream and a carrot. That image was included [in] a lawsuit over the slaughtering of horses for human consumption, and was meant to underscore the fact that zoos feed their animals a considerable amount of horsemeat.” In that case, as in the three more recent ones, the picture was mere surplussage.

Using Persuasive Pictures Properly

By contrast to judge Posner’s hamhanded efforts, the lawyer for the Dallas Mavericks effectively used an image in a summary judgment opposition brief. In Hillwood Investment Properties, III, Ltd. v. Radical Mavericks Management, a 5% owner of the Dallas Mavericks claimed that the team had been mismanaged, and sought the appointment of a receiver. The Mavericks’ three-page summary judgment brief prominently featured a photo to underscore the team’s argument that the evidence demonstrates that, as a matter of law, the team had not been mismanaged:


Mavericks summary judgment brief

Postscript

Don’t make the same mistake Judge Posner keeps making: if you include a photo in a brief, make sure that it packs a real rhetorical punch, or that (like a signature sample in a fraud action) it’s crucial to the case.

Report Accompanying ABA Ethics 20/20 Commission’s New Outsourcing Resolution Suggests Supervision Standard Less Client-Protective than Existing Law

Written by Lisa Solomon on February 22nd, 2012 · 1 Comment


For the past year and a half, the ABA’s Ethics 20/20 Commission has been considering changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. Yesterday, the Commission issued its Revised Draft Resolution on the subject for comment. The Revised Draft Resolution is the fourth version of proposed changes to the ABA Model Rules (and the comments to those rules) since the Commission first took up this issue; previous drafts were issued in September 2011, May 2011 and November 2010.

As the Commission explains in its cover memo,

The only substantive change to the Commission’s outsourcing proposals appears in Comment [6] to Rule 1.1 (Competence). That Comment addresses a lawyer’s ethical duties when a portion of a client’s legal work is outsourced to a lawyer in another firm. The last sentence of the prior draft said that, “[w]hen using the services of nonfirm lawyers in providing legal services to a client, a lawyer also must reasonably believe that such services meet the standard of competence under this Rule.” The Commission heard concerns that the sentence as written might be read to impose on lawyers an unnecessary ethical obligation to ensure that the work of a lawyer in another firm was performed competently. The Commission agrees that, in many circumstances, it will be reasonable to rely on the work performed by nonfirm lawyers without independently confirming that that [sic] work was performed competently. The Commission does not believe that the prior draft should be read to impose such a duty, but the Commission nevertheless decided to soften the language by replacing the word “must” with the word “should.”

In the context of the Model Rules comments, I don’t see any practical distinction between the duty imposed on an outsourcing lawyer by merely replacing “must” with “should.” Since the Commission doesn’t intend that Comment [6] be construed to impose a duty to independently confirm that outsourced work was performed competently, it should have included that clarification in the comment itself, rather than relegating it to the cover memo.

All of this goes back to the hiring lawyer’s duty to appropriately supervise work performed by a nonfirm lawyer. As I explained in my analysis of ABA Formal Op. 08-451, under the current Model Rules, an outsourcing lawyer’s duty to make reasonable efforts to ensure that a nonfirm lawyer conforms to the Rules of Professional Conduct (which impose a duty of competence) is no different from the responsibility of a lawyer supervising the work of another attorney who is employed by the lawyer’s firm. However, the statements in the Commission’s cover memo are inconsistent with Op. 08-451, since they can be read as imposing a lesser duty on a lawyer supervising a non-firm lawyer than on a lawyer supervising another lawyer in the same firm. To ensure competent representation, the extent of a supervising lawyer’s obligation to ensure that all supervised work has been performed competently must not depend on whether an associate or a freelance lawyer has performed that work.

This shouldn’t discourage anyone from outsourcing. Remember, adequate supervision—whether over an associate or a nonfirm lawyer—is judged on a reasonableness standard. The level of supervision required depends on factors such as the background of the supervised lawyer (a junior lawyer with no experience in the substantive practice area will require more supervision than a seasoned attorney with extensive substantive experience in the relevant practice area) and the length of the relationship between the supervising and supervised lawyers (a new relationship calls for greater supervision than an established one). Thus, to comply with ethics rules without losing the efficiency benefit of outsourcing, a solo or small firm lawyer should develop a relationship with an experienced freelance attorney.

The Commission seeks further comments in response to the Revised Draft Rsolution. Comments should be submitted by April 2, 2012 to Senior Research Paralegal Natalia Vera at natalia.vera@americanbar.org.

New Fixed-Rate WestlawNext Plan is a Good Value for Solos and Small Firms

Written by Lisa Solomon on February 15th, 2012 · 2 Comments


If you’ve read any of my other posts about WestlawNext, you may think you’ve landed on the wrong blog. While it’s true that I can be highly critical, I also believe in giving credit where credit is due. With the introduction of the Related Documents for Small Law Firms WestlawNext plan, Thomson Reuters deserves some kudos.

A Bit of Background

As I’ve previously noted, I’m a big fan of the Results Plus plan available in “classic” Westlaw. When you’re searching within a database covered by your Westlaw subscription, the Results Plus plan allows you to click on any of the documents you see listed on the right side of your search results screen without incurring an out-of-plan charge (without Results Plus, you’d get an out-of-plan warning screen). Only the “first click” is free: while you can browse through the table of contents of the analytical source you’ve linked to at no cost, if you view any other section of the source from the table of contents, it will be considered out-of-plan (you’ll get a warning screen and can then choose to cancel or continue).

Shortly after Thomson Reuters launched WestlawNext at LegalTech 2010, I began negotiating with my local Westlaw rep about upgrading to the new product. Because I’m such a fan of Results Plus, I was interested in a similar plan on WestlawNext. Unfortunately, a similar plan wasn’t available at the time, and the other plans offered were not adequate substitutes. For that reason—and because my representative ultimately quoted me a total plan price that was 68% higher than what I was then paying for my Westlaw subscription—I decided to stick with Westlaw.

I recently decided to revisit the possibility of switching to WestlawNext, for two reasons. First, my three-year Westlaw contract expired at the end of 2011. Second, a number of colleagues have recently told me that they found very little price differential between Westlaw and WestlawNext. My timing was auspicious, as Thomson Reuters recently launched a plan add-on called Related Documents.

What is Related Documents?

Related Documents is similar—but not identical—to Results Plus. On the positive side, while 300 secondary sources are included in Results Plus, more than 5,000 secondary sources (including all of the sources included in Results Plus) are included in Related Documents. On the negative side, the Related Documents display is limited to (what the WestlawNext algorithm considers to be) the three most relevant secondary source documents, along with the three most relevant briefs and three most relevant trial court documents (a category that includes pleadings, motions, memoranda & affidavits; transcripts; filings; depositions and discovery; verdicts & settlements; proposed orders, agreements and settlements; jury instructions; and expert materials). This is a negative because, in my view, briefs and trial court documents have little value as legal research resources—especially when compared to the significant value provided by secondary sources. Results Plus returns a greater number of relevant secondary sources to explore.

The good news is that, when you subscribe to the Related Documents plan, you’ll also be able to access Results Plus within classic Westlaw (back in early 2010, I was told that switching from Westlaw to WestlawNext was an all-or-nothing proposition). Therefore, if you’re not satisfied with the secondary sources displayed within Related Documents, you can re-run your search in good ol’ Westlaw. (Of course, you can also modify your WestlawNext search slightly in an effort to get different secondary documents to display.)

Here’s the official product description:

WestlawNext Related Documents

Show me the Money, Jerry

The “rack rate” for Related Documents is $165/month for solos (I don’t know what the “rack rate” is for firms of 2-29 lawyers). You should use that number as a starting point and negotiate down with your rep. In your negotiations, remember that:

  • the longer the contract you’re willing to sign, the less you should be paying per month for your WestlawNext subscription
  • your rep is a salesperson who will be particularly motivated to meet sales goals at the end of each calendar quarter and at the end of the year

Finally, don’t purchase any multi-year WestlawNext plan through the online Westlaw Store, which doesn’t offer multi-year discounts.

New Freelance Lawyering Success Packages to Help You Achieve Your Goals in 2012

Written by Lisa Solomon on January 4th, 2012 · 3 Comments


Freelance Freedom recordingThe new year is a perfect time to implement new plans. Whether you want to get started as a freelance lawyer or expand your freelance law practice this year, LRWP’s new Freelance Lawyering Success Packages can help you achieve your goal.

The core of the Freelance Lawyering Success Packages is the Freelance Freedom recording. In this 2.5-hr. video, I answer these important questions:

  • What is the most powerful way to market your services as a freelance lawyer?
  • How much should you charge, and how can you make sure you get paid?
  • What ethical issues arise in the freelance lawyering relationship, and how are those resolved?
  • Should you obtain your own malpractice insurance?
  • If you want to concentrate on legal research and writing, do you need your own Lexis or Westlaw/WestlawNext subscription? How can you get the best deal from these companies? What alternatives are available?
  • How can you compete with foreign LPOs?
  • What impact will the ABA Ethics 20/20 Commission’s revised initial proposal concerning changes to the Model Rules of Professional Conduct have on freelance attorneys and the lawyers who hire them?
  • Why is a shaky economy good news for freelance lawyers?

This recording is chock-full of information for all types of contract lawyers—whether you want to handle depositions for other lawyers, assist with discovery or trial prep, cover court appearances, or offer legal research and writing services.

Freelance Freedom Companion GuideAll of the Success Packages also include the Freelance Freedom Companion Guide. This unique e-book contains a comprehensive collection of ethics opinions from across the country that are relevant to freelance lawyers and the attorneys who hire them. As a bonus, you also get a sample services agreement (in MS Word format)—the same agreement I use in my own successful practice as a freelance lawyer.

Visit the LRWP products page for more information about the Silver, Gold, Platinum and Platinum Plus Freelance Lawyering Success Packages.

Freelance Freedom: How to Get Started as an Independent Contract Lawyer Coming to NYCLA on November 10

Written by Lisa Solomon on October 18th, 2011 · 1 Comment


Since I launched Legal Research & Writing Pro in 2008, the recording of my popular teleseminar, Freelance Freedom: How to Get Started as a Contract Lawyer has helped many lawyers begin successful careers as freelance attorneys. During that time, bar associations have increasingly recognized the importance of educating their members about the opportunities presented by “alternative” legal careers such as freelance lawyering.

The New York County Lawyers Association is one of those forward-thinking bar associations. On Thursday, November 10, NYCLA will be hosting my live presentation of an updated Freelance Freedom: How to Get Started as an Independent Contract Lawyer at its headquarters in downtown Manhattan.

Here’s the complete program description:

Outsourcing is the wave of the future. But it’s not just for big firms and the staffing agencies that serve those firms. Freelance attorneys are a growing cadre of solo practitioners who, enabled by technology, work on a project-by-project basis for other lawyers. More and more lawyers—from newly-admitted attorneys who are tired of sitting on the sidelines of the legal job market to experienced attorneys who want an intellectually fulfilling legal career and work/life balance—are entering this practice area.

This program will address these important questions:

  • What is the most powerful way to market your services as a contract lawyer?
  • How much should you charge, and how can you make sure you get paid? What ethical issues arise in the freelance lawyering relationship, and how are those resolved?
  • Should you obtain your own malpractice insurance?
  • If you want to concentrate on legal research and writing, do you need your own Lexis or Westlaw/WestlawNext subscription? How can you get the best deal from these companies? What alternatives are available?
  • How can you compete with foreign LPOs?
  • What impact will the ABA Ethics 20/20 Commission’s proposed changes to the Model Rules of Professional Conduct have on freelance attorneys and the lawyers who hire them?
  • Why is a shaky economy good news for freelance lawyers?

This 2.5-credit CLE program will be held on Thursday, November 10 from 6:25 to 8:30 p.m, following a brief networking reception that starts at 6:00. To register, click here.

Dahn’s response to WestlawNext pricing critique ignores solo and small firm concerns

Written by Lisa Solomon on October 16th, 2011 · 1 Comment


A couple of weeks ago, Jason Wilson’s rethinc.k blog featured a two-part series of posts entitled On WestlawNext, WestSearch, and Haters: A Brief Interview with Mike Dahn of Thomson Reuters. Although Wilson’s interview focused on questions concerning the WestlawNext search algorithm, Dahn made a few comments that touched on pricing, prompting me to write a responsive post addressing: (1) the cost of retrieving secondary source materials by citation on WestlawNext; and (2) the non-availability of subscripton pricing for many of those secondary sources (particularly the ones included as part of the ResultsPlus plan on Westlaw).

Dahn has “responded” to the first issue raised in my post in a follow-up post at rethinc.k:

To understand actual pricing differences, it’s necessary to examine the totality of transactions rather than individual transactions, and the cost of out-of-contract charges will be especially important . . . . Lisa says that it’s much more expensive to retrieve an ALR article in WestlawNext than in Westlaw Classic, but it depends how you retrieve it. When we look at our server logs, it is extremely rare for researchers to type in a citation to retrieve an ALR—much more likely that they’ll search for one. If ALR is outside of your subscription plan and you’re paying retail, the cost of an ALR citation retrieval for something specific, like an ALR on sex-plus discrimination claims, will be almost twice in WestlawNext what it costs in Westlaw Classic—however, the more common scenario of searching for an ALR on sex-plus discrimination would cost a firm three times more in Westlaw Classic than it would in WestlawNext.

With that example, am I claiming that WestlawNext is three times less expensive than Westlaw Classic? No, of course not. It’s not very useful to look at individual transactions in isolation. I could easily list a dozen research scenarios where the retail pricing is dramatically less in WestlawNext and another dozen where the retail pricing is dramatically more. For customers who care about retail pricing differences at all (only matters when going outside your subscription plan or when using our retail pricing structure as a basis for determining costs for client charges—in other words, not relevant to most Westlaw users most of the time), I’d encourage them to look at the totality of hourly and/or transactional charges within and across research sessions.

We’ve recently had the managing partner of an Am Law 200 firm tell us that, since subscribing to WestlawNext, they’re now turning research projects around in one tenth the time. Undoubtedly, if you were to take selected pieces of that firm’s WestlawNext research sessions and compare them with selected pieces of their prior research sessions in Westlaw Classic, you could find instances where the retail charges were higher in WestlawNext, but it’s the totality of the transactions that matter more. We now have 52% of Am Law 100 firms subscribing to WestlawNext, and the way they have tended to analyze these issues prior to subscribing is by running a trial with a subset of attorneys and then asking two questions: (1) are our out-of-contract costs up or down significantly when comparing this group’s usage to previous projects or control groups? And (2) are the in-contract price allocations for client cost recovery up or down significantly when comparing this group’s usage to previous projects or control groups using historical discount rates?

The first question is the more important one. . . .using a trial group of attorneys and looking at the totality of costs and charges over many research sessions is the right way to approach this, as opposed to homing in on specific transaction cost differences and then guessing how it will play out.

Dahn’s response falls short in a number of respects.

First, Dahn simply ignored the fact that the content that is part of the ResultsPlus Westlaw plan subscription is simply unavailable in a comparable plan on WestlawNext.

Second, I did not say that it’s more expensive to “retrieve an ALR article in WestlawNext than in Westlaw Classic.” This makes it sound like my criticism applies only to a specific type of secondary source. In fact, I noted that it costs 75% more to retrieve any “Premium State and Speciality” secondary source document, and 91% more to retrieve any “Premium National” secondary source document, by citation on WestlawNext than on Westlaw.

Third, Dahn’s response actually contradicts the position he espoused in the original rethinc.k interviews. There, Dahn said:

Since WestlawNext aggregates multiple content sets under a single low search price, researchers should be more likely to browse content beyond cases and statutes—which is exactly what we see in our usage logs. In WestlawNext, secondary source usage as a percentage of total usage is up 50% over the ratios we see in Westlaw Classic. We think that’s a very good thing for researchers.

As a librarian, I always encouraged both students and associates to leverage secondary sources in their research—the right secondary source can literally save hours of time, and that time savings is a cost savings to clients. When I first came to West, I tried to promote the use of secondary sources within Westlaw, and our first project to accomplish that in a big way was ResultsPlus. With it, we saw a significant boost in secondary source usage, but WestlawNext takes it to a whole new level, making sure that relevant secondary sources are not just suggested on the side, but made an integral part of the main search result.

Now, however, Dahn contends that “[w]hen we look at our server logs, it is extremely rare for researchers to type in a citation to retrieve an ALR—much more likely that they’ll search for one.” Notice that Dahn did not say that it’s rare for a researcher to retrieve a secondary source by linking to it from the WestlawNext search results. Indeed, we can assume that it’s common to retrieve a secondary source by linking to it from the WestlawNext search results because secondary source usage is much higher in WestlawNext than in Westlaw.

If a secondary source is not within a user’s subscription plan, when the user retrieves a section from that source by linking to it from a WestlawNext search result, the user is charged a per-document fee, which (as noted above) is significantly higher for many of the secondary sources that are most valuable to practitioners. As I noted in my last post, while it makes sense for Thomson Reuters to achieve its goal of recouping its R&D costs to develop WestSearch (the WestlawNext search algorithm) by increasing the cost of subscription plans, it makes no sense to increase the cost of retrieving a document by citation.

Solos and small firm lawyers are 70% of all lawyers in the US (as of 2000)Dahn’s response to that point shows where Thomson Reuters’ real sympathies lie. He says: “For customers who care about retail pricing differences at all (only matters when going outside your subscription plan. . . .—in other words, not relevant to most Westlaw users most of the time).” He also references the fact that 52% of Am Law 100 firms now subscribe to WestlawNext. Of course, it makes sense that large firms&#8212the only customers who really matter to Thomson Reuters—would generally have broad subscription plans that include many secondary sources. But for solos and small firms—in other words, the vast majority of lawyers in this country*—who (I strongly suspect) generally have much more limited subscription plans, retail pricing does matter. ResultsPlus (in which the first click on any materials outside a user’s subscription plan that display to the right of the regular search results is “free”) helped even the playing field for Westlaw subscribers, but it’s not available in WestlawNext. WestlawNext’s pricing structure for document retrieval by citation is as regressive a burden on those firms as Herman Cain’s 9-9-9 tax plan is on the poor.

*As of 2000 (the most recent year for which the ABA has published statistics), 70% of private practitioners were either in solo practice or employed in firms of 10 attorneys or fewer.

My response to rethinc.k series on WestlawNext, WestSearch, and Haters

Written by Lisa Solomon on October 5th, 2011 · 3 Comments


This week, Jason Wilson’s excellent rethinc.k blog features a two-part series of posts entitled On WestlawNext, WestSearch, and Haters: A Brief Interview with Mike Dahn of Thomson Reuters. Wilson’s interview focused on questions concerning the WestlawNext search algorithm.

I’ve always conceded that, for the most part, WestlawNext is superior to Westlaw. However, I’ve been outspoken in my criticism of WestlawNext’s pricing (does that make me a “hater”?). One of Dahn’s comments in this new interview has led me to revisit this issue.

Dahn says:

As a librarian, I always encouraged both students and associates to leverage secondary sources in their research – the right secondary source can literally save hours of time, and that time savings is a cost savings to clients. When I first came to West, I tried to promote the use of secondary sources within Westlaw, and our first project to accomplish that in a big way was ResultsPlus. With it, we saw a significant boost in secondary source usage, but WestlawNext takes it to a whole new level, making sure that relevant secondary sources are not just suggested on the side, but made an integral part of the main search result.

In addition, if you want to browse content like ALR or jury verdicts in Westlaw Classic, and they’re not included in your subscription plan, you must pay an out-of-plan cost to search them before you can browse anything—and you’ll have to try this with database after database. In WestlawNext, ALL searching is included within subscription plans (even if the underlying content is not), and we show more of a document preview in WestlawNext than we do in Westlaw Classic, so customers can browse previews of content outside their subscription plan all day long without incurring extra charges. This not only encourages browsing, but it tends to reduce out-of-plan costs . . . . [W]ith WestlawNext you can search repeatedly and browse content previews all you want, and you only pay for the out-of-plan document you click on. This will almost always cost much less than what it would have cost to search and browse in Westlaw Classic. And in WestlawNext, any search that turns up nothing costs you nothing (in terms of incremental charges), but in Westlaw Classic, if your search results in no relevant documents, you still pay an out-of-contract cost for the search.

These comments fail to address two critical aspects of the Westlaw Classic v. WestlawNext analysis: (1) the true cost of using out-of-plan secondary sources on WestlawNext; and (2) pricing for the valuable content that is included in ResultsPlus.

The true cost of accessing out-of-plan secondary sources on WestlawNext

To be fair, I omitted from the above quote Dahn’s statement that “I heard from a large law firm librarian the other day who said her out-of-plan costs were down 67% in WestlawNext compared with Westlaw Classic.” However, a comment from one large-firm librarian is not an accurate reflection of the true costs of accessing out-of-plan resources (including secondary sources) on WestlawNext. Because, after all, while it’s great to be able to browse document previews, we all know that—just as you would never cite a case after reading a headnote instead of the case itself—the important thing is the document, not the document preview. In this regard,

[o]f course, WN search results may alert legal researchers to issues they would otherwise overlook. But they need not start with a WN search to remedy this deficiency. Secondary sources in a law library appear more likely than WN searches to save legal researchers time, and their clients unnecessary search costs, as long as researchers have ready access to a law library, and know how to effectively use the sources or receive instruction. At “retail,” transactional rates, a WN search costs $60, and then $42 to view a section of a “premium state [or] speciality title.” (TR Legal, WestlawNext Pricing Guide for Commercial Plans (Feb. 2010)) WN search results may include a larger collection of relevant secondary sources. But you may incur unnecessary cost to run even one search on WN, and view several documents, at least if you can gain the needed context from a treatise or legal encyclopedia in your institution’s law library. Moreover, it will cost almost twice as much in WN than in WC to view “speciality title” sections. (TR Legal, Westlaw Pricing Guide For Private Price Plans (Apr. 2010)).

* * *

Suppose you are a California attorney. Anticipating criminal law as the likely context, you could start with Witkin & Epstein, Cal. Criminal Law (3d ed. 2000). Using WN or WC, you could browse the table of contents to find the relevant discussion:

Chapter XIV. Criminal Trial – X. RIGHT TO AND SELECTION OF JURY – A. Right to Jury Trial – 4. Waiver of Right. – h. [§ 459] Effect of Waiver on Retrial.

WN users can still access the table of contents of Cal. Criminal Law and other secondary sources. But it will cost them more to do so. Under a private plan’s “retail,” transactional rate, it costs $24 to retrieve Cal. Criminal Law § 459 from WC; however, it costs $42, or almost twice as much, to retrieve this section from WN. This difference in cost has significant consequences for charges to clients and cost recovery, because the difference will have iterations every time WN users rely on WN’s print-based features. Thus Cal. Criminal Law § 459 cites to People v Solis, 66 Cal.App.4th 62, 77 Cal.Rptr.2d 570 (1998). The case would lead you to another helpful secondary source:

Although there are no published opinions in California specifically addressing whether a jury trial waiver remains in effect for a subsequent retrial of the same case, the contention has been considered and rejected in many other state and federal courts. (United States v. Groth (6th Cir.1982) 682 F.2d 578; United States v. Lee, supra, 539 F.2d 606, 610; People v. Mixon (1994) 271, 111. App.3d 999, 208 Ill.Dec. 385, 387, 649 N.E.2d 441, 443; People v. Hamm (1980) 100 Mich. App. 429, 298 N.W.2d 896, 898; State v. Di Frisco (1990) 118 N.J. 253, 571 A.2d 914, 930; see also Annot., Waiver of Right to Trial by Jury as Affecting Right to Trial by Jury on 573-573 Subsequent Trial of Same Case in Federal Court (1984) 66 A.L.R.Fed 859, 869, § 7 and cases cited.)” (77 Cal.Rptr.2d 570, 572-73).

(Links omitted)

It costs $24 to retrieve the ALR document from WC, but $46 to retrieve it from WN. And if the ALR led to other secondary sources, the cost difference repeats itself.

The WestSearch Straitjacket For Legal Research—Thinking Beyond The Keyword: Part I. Although Dahn criticizes the fact that the author of this post is anonymous, the facts contained in the paragraphs quoted above are undeniable.

While I continue to believe that Thomson Reuters should have absorbed the cost of developing WestSearch (the WestlawNext algorithm) as part of its R&D budget, since the company is as intent on cost-recovery as it urges its customers to be, it makes sense to reflect those costs in increased rates for subscription plans (which encourage searching within one’s plan). However, WestSearch has no impact on what it takes to retrieve a document by citation. Why, then, does it cost 75% more to retrieve a “Premium State and Speciality” secondary source document, and 91% more to retrieve a “Premium National” secondary source document, by citation on WestlawNext than on Westlaw?

There is also plenty of anecdotal information to counter Dahn’s single positive anecdote about out-of-plan savings with WestlawNext. For example, from WestlawNext: Pros and Cons and General Comments from Law Librarians (summary of comments posted to the American Association of Law Librarians listserv):

  • Way too expensive.
     
    * * *

  • When we research an issue, it isn’t unusual for an attorney to scan 40 or 50 cases at a time to get the total picture – the WLN pricing structure penalizes this kind of exhaustive research by charging for each result viewed, while the WL Classic model supports it.
     
    * * *

  • Dislike. It is very expensive and our ability to bill back suffered as an overall percentage of recovery because with two systems, usage stayed the same but the bill got bigger.

From How widespread is WestlawNext? (summarizing comments about WestlawNext posted on Northern California Association of Law Libraries (NOCALL) listserv):

Though honestly we haven’t embraced it completely and probably won’t until West tells us they are pulling the plug on classic. I think it is a good product. I like the $60.00 search and the left-hand screen that guides you to your hits. The biggest issue is the pricing per document. Those clicks just add up.

The Non-Availability of Subscripton Pricing for ResultsPlus Content

Since I find ResultsPlus to be an important part of my Westlaw subscription, my previous posts about WestlawNext included painstaking analysis of the availability of a comparable plan on WestlawNext. To cut to the chase, there isn’t one that even comes close. (Rather than re-post my earlier analyses, I refer you to My WestlawNext Upgrade Negotiations: Proof that West Isn’t Interested in the Solo Market and Westlaw Reps Don’t Know their A$$es From their Elbows When it Comes to WestlawNext Packages and Pricing.)

Combining my analysis with Dahn’s recent comments reveals is that, while WestlawNext may have achieved the (laudatory) goal of increasing the use of secondary sources, it is also achieving the (laudatory only from the perspective of TR and its shareholders) goal of increasing out-of-plan charges for the use of those sources.

One final point: Mike notes that there has been a lot of “positive Twitter commentary” about WestlawNext. I suspect that the vast majority of that commentary is from law students—in other words, people who (1) have little or no real-world research experience with Westlaw or WestlawNext; and (2) do not pay to use WestlawNext, and therefore have no idea of the charges they would incur for their research in the real world.