Written by Lisa Solomon on October 11th, 2010 · No Comments
As Virginia Lawyers Weekly reported last Friday, the Virginia State Bar recently released a draft of its Legal Ethics Opinion 1850, entitled Outsourcing of Legal Services. The opinion doesn’t break any new ground; instead, it’s merely the most recent ethics opinion to support outsourcing.
LEO 1850, like Ops. 08-451 and 2006-3, begins with a recognition that legal outsourcing can be salutary for both the lawyer and the client:
Law firms have always and will always engage other lawyers and nonlawyers1 in the provision of various legal and non-legal support services. Legal outsourcing can be highly beneficial to the lawyer and the client, since it gives the lawyer the opportunity to seek the services of outside lawyers and staff in complex matters.
After setting forth three fact patterns involving outsourcing, as well as the relevant ethics rules, LEO 1850 (quoting Op. 08-451 without attribution) states:
There is nothing unethical about a lawyer outsourcing legal . . . services, provided the outsourcing lawyer renders legal services to the client with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,’ as required by [Model] Rule 1.1. Comment [1] further counsels:
In determining whether a lawyer employs the requisite knowledge and skill in the particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
The opinion’s analysis is divided into sections addressing the supervision of nonlawyers, duty of competence and avoiding the unauthorized practice of law; the duty to exercise independent professional judgment; client communication and consent; confidentiality and conflicts; and billing and fees.
Supervision of Nonlawyers, Duty of Competence, Avoiding the Unauthorized Practice of Law and Exercising Independent Professional Judgment
LEO 1850, NYC Bar Op. 2006-3 and ABA Op. 08-451 all recognize that the outsourcing lawyer has a duty to exercise due diligence in choosing an outsourcing partner, and all stress the importance of adequately supervising the outsourcing partner’s work. According to LEO 1850 and NYC Bar Op. 2006-3, this supervision is also the key to avoiding aiding the unauthorized practice of law (the ABA considered the UPL issue to be beyond the scope of its authority).
LEO 1850 further recognizes that, “just as with any other supervisory matter,” a Virginia lawyer must ensure that any nonlawyer to whom work is outsourced understands and will comply with the ethical rules governing the Virginia lawyer’s conduct, and will act in a manner compatible with the Virginia lawyer’s professional obligations. This recognition is similar to the ABA’s concession that the ethical responsibility of an outsourcing lawyer to make reasonable efforts to ensure that a contract lawyer conforms to the Rules of Professional Conduct is no different from the responsibility of a lawyer supervising the work of another attorney who is employed by the supervising lawyer’s firm.
Like the NYC Bar opinion, LEO 1850 notes that an outsourcing lawyer must maintain independent legal judgment regarding the client’s matters, and must feel assured that any outsourcing arrangement would not jeopardize this responsibility.
Although LEO 1850 doesn’t discuss the additional due diligence obligations imposed on attorneys outsourcing to a foreign country, there is no reason to believe that Virginia ethics authorities would impose any lesser obligations on foreign outsourcers than Op. 08-451 imposes.
Client Communications and Consent
LEO 1850 directs that an outsourcing lawyer must obtain client consent to outsource any “substantive client work that involves legal analysis and work product related to confidential client information.” On the other hand, an outsourcing lawyer need not inform the client every time the lawyer outsources legal support services that are truly tangential, clerical or administrative in nature. This position is consistent with that taken in both NYC Op. 2006-3 and ABA Op. 08-0451.
I’m a bit surprised that, under LEO 1850, a client need not be informed “when basic legal research or writing is outsourced without any client confidences being revealed.” This is surprising because, in my view, legal research and writing, by their very nature, involve the exercise of discretion.
Confidentiality and Conflicts
LEO 1850, ABA Op. 08-451 and NYC Bar Op. 2006-3 all recommend including a confidentiality provision in any outsourcing agreement.
LEO 1850 sides with NYC Bar Op. 2006-3 on the issue of conflicts. Whereas the ABA calls for disqualification if the outsourcing partner works for adversaries of the outsourcing lawyer’s clients on the same or substantially related matters, LEO 1850 and Op. 2006-3 require only that the outsourcing lawyer “remind” the nonlawyer (as well as any intermediary that may be involved in the outsourcing relationship), in writing, of the need to safeguard the confidences and secrets of the lawyer’s other current and former clients.
Show Me the Money
LEO 1850 provides that, if payment to a non-lawyer is billed to the client as a disbursement, the outsourcing attorney must disclose the actual amount of the disbursement, as well as any markup or surcharge on the amount disbursed to the non-lawyer.
However, like ABA Op. 08-451, LEO 1850 (incorporating by reference the position taken in LEO 1735), allows an outsourcing attorney to bill for work done by a contract lawyer as a professional fee, with the amount billed based on the non-lawyer’s experience and background, in the same manner it would bill the client for an associate’s work on the client’s case. If the non-lawyer’s work is billed as a professional fee, the outsourcing lawyer need not disclose to the client the details of the payment arrangements with the nonlawyer (in other words, the outsourcing lawyer need not disclose how much profit he or she is making on the work done by the nonlawyer). LEO 08-451 additionally notes that it is improper for a lawyer working on a contingency basis to charge separately for a contract lawyer’s performance of work that is usually done by a client’s own lawyer.
Conclusion: LEO 1850 is Consistent with Earlier Influential Outsourcing Opinions
As noted numerous times above, LEO 1850 quotes (albeit without attribution) large portions of NYC Bar Formal Op. 2006-3 and ABA Op. 08-451. Indeed, not only does LEO 1850 reach the same conclusions as those earlier opinions, its closing paragraph is substantially identical to the one contained in the New York City Bar opinion:
A lawyer may ethically outsource legal support services to a nonlawyer if the lawyer: (1) rigorously supervises the nonlawyer so as to avoid aiding the nonlawyer in the practice of law and ensuring that the nonlawyer’s work meets the lawyer’s requirements of competency [sic], (2) preserves the client’s confidences, (3) bills for the services appropriately, and (4) obtains the client’s advance consent to outsourcing the work.
Finally, LEO 1850 makes explicit a point that the commenters (or should I say complainers) at sites such as Above the Law would rather ignore: ethics opinions concerning outsourcing apply “regardless of whether legal services are outsourced locally or overseas.” Thus, while LEO 1850 may represent a threat to Virgina contract lawyers who do document review through staffing agencies, it’s helpful for independent Virginia contract lawyers (a/k/a freelance lawyers) because it explains the benefits of using contract lawyers; affirms that it is ethical to earn a profit on the work performed by contract lawyers; and explicitly addresses issues such as conflicts and confidentiality, all of which are no doubt on the minds of many Virginia attorneys who could benefit from outsourcing.
1LEO 1850 uses the term nonlawyer to refer to both outsourced lawyers and nonlawyers.
The ability to write forcefully and effectively is critical to your success as a lawyer. In this webinar, lawyers will learn to write more persuasively by using the same powerful techniques that copywriters have relied on for years. Discover what these techniques are and how to apply them in both briefs and client-focused writing.
Attorneys who attend this webinar will learn about:
The greatest challenge your writing must overcome to persuade readers to take a desired action
Basic concepts underlying all effective persuasive writing—ignore these and you’re sunk
How to write a compelling brief that the judge just can’t put down
The role of emotion in jurisprudence and how to trigger the reader’s emotions
The things readers absolutely hate—and how to avoid them
How to deal with objections to your position
Closing the deal: conclusions and calls to action
This webinar is part of a series of complimentary webinars from Avvo, a website that offers ratings and profiles for 90% of U.S. lawyers, as well as client reviews, peer reviews and attorney disciplinary records. The website currently covers all 50 states and the District of Columbia.
Once again, that’s Thursday, October 7 at 1 p.m. (EDT). To register, click here.
If you’re in the New York City area and would like to get CLE credit for attending this program, I’ll be presenting it live at the New York County Lawyer’s Association (downtown at 14 Vesey Street) on Monday, October 4 from 7:45-9:00 p.m. The program (part of a four-credit Bridge the Gap session) is suitable for both new and experienced lawyers. To register, click here.
Two more Opportunities to Learn About the Benefits Solos and Small Firm Lawyers Can Reap by Working With Contract Lawyers
Attend this program to learn how contract lawyers can help you achieve work/life balance by providing a safety valve when you’re swamped with work, increase professional satisfaction by enabling you to focus on those legal tasks you find most rewarding and increase profits without adding to your firm’s overhead.
The program will be moderated by Alla Roytberg, Director of the NYC Bar’s Small Law Firm Center. I’ll be joined on the panel by Edgar De Leon of De Leon & Associates, PLLC, who will discuss his experience working with contract lawyers.
A wine and cheese reception from 6:30-7:15 will be followed by the program from 7:15-8:30.
Once again, that’s Tuesday October 5 from 6:30-8:30 p.m. To register, click here.
Not in the New York City area? Listen to Law Firm Staffing Alternatives: Contract Lawyers on Total Expert Radio, on Friday, October 15 from 1:00-2:00 p.m. (Eastern). Outsourcing is the wave of the future. But it doesn’t necessarily mean sending work overseas, and it’s not just for big firms. Solos and small firms can garner many benefits by outsourcing substantive legal work to independent, US-based contract (a/k/a freelance) lawyers. Join us to learn how to use contract lawyers in your law firm to fill both long-term and temporary staffing needs.
The live, Q & A format show is part of a series of shows about the hottest topics in law practice management from Total Attorneys, a technology-enabled service provider dedicated to assisting with every aspect of small and solo law firm practice management, growth and development. Although pre-registration is not required, you may want to bookmark the show page so you can quickly return to it on October 15.
Outsourcing is the wave of the future. But it doesn’t necessarily mean sending work overseas, and it’s not just for big firms. Solos and small firms can garner many benefits by outsourcing substantive legal work to independent, US-based contract (a/k/a freelance) lawyers.
Topics covered in this course include:
Benefits of outsourcing work to a contract lawyer
How to find a contract attorney to work with
What a good contract lawyer should bring to the table
Ethical issues in the outsourcing relationship
This program will carry 1 CLE credit. (CLE accreditation will be supplied for Florida lawyers. A certificate of completion will be provided for lawyers in other states. Click here for information about obtaining CLE accreditation for this course in your state.)
Business: Freelance lawyers are business owners who set their own hours and decide what work they want to do (i.e., substantive leglankal research and writing).
Malpractice insurance: Freelance lawyers need their own malpractice insurance and you can read why in Lisa’s guide to contract lawyering.
Ethical considerations: All states allow freelance lawyering. ABA Formal Op 08-451 is the main ethics opinion regarding freelance lawyering, and you can read Lisa’s analysis of the opinion here.
Getting Started: Go where the clients are–for example, litigation section of your bar association. Talk to small firm lawyers and solos and offer to take some work off their hands.
Thanks to Amanda and Melissa for inviting me to co-host #LawJobChat. For information about future #LawJobChats, follow @LawJobChat on Twitter or subscribe to Amanda’s blog.
My last post on this subject was prompted, in part, by the abysmally poor grammar used in a particular LPO company’s marketing piece. As I explained in comments to that post, I think the quality of a company’s marketing materials is a good predictor of the quality of its work product. Last Friday, another marketing piece, by another foreign LPO company, brought this issue to the forefront once again:
This tweet promoted The Legal Outsourcing Handbook from LegalEase Solutions. Ever curious, I downloaded the Handbook and started to read.
I was immediately struck by the “quality” of the writing. From the first paragraph (and, as I was to find out) to the last, the Handbook is rife with grammatical and usage errors; a few typos are thrown in for good measure. These errors alone would be sufficient to disqualify LegalEase from consideration by any sole practitioner or small firm looking to outsource: the last thing that a busy solo or small firm lawyer wants to deal with when outsourcing substantive legal work is having to practically rewrite a brief to get it signature-ready. But more serious still are the Handbook’s substantive errors.
In fact, Op. 08-451 itself discusses the ABA’s two earlier opinions concerning outsourcing: Formal Op. 00-420 (Surcharge to Client for Use of a Contract Lawyer) and Formal Op. 88-356 (Temporary Lawyers [the ABA acknowledges in Op. 08-451 that engaging the services of a temporary lawyer is "a form of outsourcing"]). Although the ABA’s ethics opinions are not binding in any state, they are widely cited in relevant opinions issued by state ethics authorities and some influential local bar associations (such as the New York City Bar Association). One would expect an LPO company like LegalEase to have a better understanding of these opinions, upon which the very viability of its business model rests.
There’s more. As every 1L knows, if you’re going to cite a case or statute in a brief, it’s important to make sure that the case or statute is still good law. In its discussion of its conflict checking systems, LegalEase quotes N.Y. Code of Professional Responsibility DR 5-105(e) (actually, it mis-cites the section as “DR 5 – 105(E), New York Lawyers Code of Ethical Responsibility”). New York abandoned the Code in favor of a modified version of the Model Rules 13 months ago.
With friends like this, the foreign LPO industry hardly needs enemies, does it? After all, wouldn’t it be fair to assume that LegalEase—which uses onshore (i.e., U.S.-based) lawyers to “manage and oversee every project, while the offshore staff performs the bulk of the work”—is also a “high-end” LPO company?
If you’re intent on squeezing every last penny of profit out of the outsourcing equation, you may be willing to spend the time to re-write poorly-written briefs, or to submit lightly-edited versions of those same briefs to the courts, in the hope that the judges before whom you practice aren’t sticklers for good writing. But are you willing to re-do the research, too, or run the risk that the brief you submit overlooks significant cases or statutes, or cites bad law? At what point does the extra work you have to do, or the extra risk you have to take, as a result of sending legal work offshore outweigh the benefit you obtain by maximizing the spread between what you pay to outsource the work and what you bill your client for that work?
There’s no question that you’ll most likely make less profit if you work with a freelance lawyer who lives, is admitted to practice in, and works in the United States than if you hire a foreign LPO company. But there’s more to outsourcing than dollars and cents: foreign LPOs may offer a better price, but onshore freelance lawyers offer solos and small firms better value.
This, of course, was an invitation I couldn’t resist. Along with Melody Kramer and Amanda Mineer of the National Association of Freelance Legal Professionals, I submitted the following comment urging the Commission to take into account the impact that its study will have on both the solos and small firms that outsource legal work and the U.S.-based freelance lawyers who serve them:
Please share your views on this subject in the comments below. And, if you’re reading this on Friday, May 7, you still have a chance to share them with the ABA, too.
What’s funnier than Sacha Baron Cohen poking fun at the U.S. Constitution by comparing it to the way his ex-girlfriend was always “trying to amend herself” with tattoos?
How about when Cohen’s ex-girlfriend sues the comedian and “Da Ali G Show” distributor Channel Four Television for defamation and infliction of emotional distress?
Or maybe Channel Four relying on a team of outsourced lawyers from India rather than U.S. attorneys?
Those Indian lawyers have found success in the case, first at a California District Court and then on Tuesday at the California Court of Appeal. The decision is being hailed as the first appellate ruling of its kind — a victory for the free speech rights of comedians who wish to make fun of ex-girlfriends in the midst of calling Gore Vidal a world-famous hairstylist and questioning whether Denzel Washington lives in George Washington’s former Mount Vernon home.
What won’t be funny is the look on the faces of American lawyers as studios decide to give more legal work to lawyers from India.
“Or maybe Channel Four relying on a team of outsourced lawyers from India rather than U.S. attorneys?”
This question misleadingly implies that Channel Four was represented directly by lawyers who are admitted to practice only in, and/or live in, India. This is not the case.
While I’m not personally familiar with either SmithDehn or SDD Global Solutions, I have no doubt that they comply with the ethical restrictions governing legal outsourcing (whether domestic or foreign). Most importantly, as I explained in my analysis of ABA Formal Op. 08-451, the outsourcing lawyer remains responsible for rendering legal services to the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Moreover, the outsourcing lawyer must make reasonable efforts to ensure that the outsourced lawyer (also known in the legal industry as a “contract lawyer”) conforms to the Rules of Professional Conduct. This is no different from the responsibility of a lawyer supervising the work of another attorney who is employed by the supervising lawyer’s firm.
Additionally, American lawyers who are outsourcing work to lawyers in a foreign country must investigate whether the system of legal education under which the lawyers were trained is comparable to that in the United States; whether the foreign lawyers are subject to a professional regulatory system that inculcates core values similar to those in the United States; the “legal landscape” of the nation to which the services are being outsourced (and, specifically, whether personal property, including documents, may be susceptible to seizure in judicial or administrative proceedings notwithstanding claims of client confidentiality); and whether the judicial system of the target country will provide prompt and effective remedies to avert prejudice to the client in the event of a dispute between the service provider and the outsourcing lawyer.
Ethics opinions in New York (where SmithDehn’s U.S. office is located) and California (where the Law Offices of Theodore F. Monroe is located) are consistent with Op. 08-451.
As an independent U.S.-based contract lawyer, I’m not thrilled that some U.S. legal work is being sent offshore. Nevertheless, I recognize that the same principles that allow firms to send legal work overseas also allow law students and law graduates awaiting admission to do actual legal work when they’re working at firms, rather than making copies and getting coffee for the partners. These principles also allow U.S. lawyers to work as contract attorneys in jurisdictions in which they are not admitted.
It’s up to U.S.-based contract lawyers to let studios—and all businesses looking to cut their litigation costs—know that they can achieve cost savings by working with firms that outsource to contract lawyers in the U.S., rather than sending the work offshore. Moreover, any company with in-house counsel qualified to supervise litigation and willing to appear on the company’s behalf as counsel of record can outsource directly to contract lawyers. There is a growing cadre of independent U.S.-based contract attorneys—some who work as solo practitioners, others who work for American companies that provide legal services (including research and writing) to other lawyers—to choose from.
Here is the pricing breakdown for three proposals my Westlaw rep set to me on February 8 (all monthly prices have been adjusted to reflect the 45% discount I would get for being willing to sign a new 3-year contract at this time):
The above proposals don’t include ResultsPlus because West is not offering ResultsPlus in WestlawNext. Furthermore, while the All Analytical and National Secondary Sources – Premium databases contain some useful secondary sources, the vast majority of sources included in ResultsPlus are not included in either All Analytical or National Secondary Sources – Premium.
Comparing my current plan to the WestlawNext proposals revealed that West would be charging an 11% premium for the power to search with the WestlawNext algorithm in the same database (All Cases & Statutes NY Gold with Regs Plus Database). While I believe that West shouldn’t charge its current subscribers anything to “upgrade” to WestlawNext, an 11% increase is in line with the pre-launch prediction offered by Jason Eiseman, Tom Boone, Greg Lambert and Jason Wilson.
On February 11, my rep’s sales manager told me that my rep had “failed to mention” that the pricing in the preceding chart was “introductory pricing” that was valid only until February 28th. So I asked the obvious question: what would the prices for each plan component be as of March 1?
It took more than a month (and quite a few strongly-worded e-mails to both my sales rep and his manager) to get a straight answer to my question. But now that I know, I can’t really blame my rep and his manager for hemming and hawing. Here are the current proposals (again, monthly prices have been adjusted to reflect the 45% 3-year contract discount):
Yes, that’s right: West believes that the WestlawNext algorithm is so valuable that its customers will be willing to pay a 68% premium to use it. While I think it generally pays to be an early adopter, this is one price I’m not willing to pay. Are you?
Written by Lisa Solomon on March 18th, 2010 · 2 Comments
Although I haven’t posted about my WestlawNext upgrade negotiations in a few weeks, things have been going on behind the scenes. Or, perhaps more accurately, they haven’t.
Here is the pricing breakdown for three proposals my Westlaw rep set to me on February 8 (all monthly prices have been adjusted to reflect the 45% discount I would get for being willing to sign a new 3-year contract at this time):
After some back-and-forth discussion with my sales rep, I moved up the Thomson Reuters food chain to my sales rep’s manager. On February 11, the sales manager discovered that my rep had “failed to mention” that the pricing in the preceding chart was “introductory pricing” that was valid only until February 28th. He also asked me to keep the negotiations confidential. On February 13, I asked the sales manager what the prices would be as of March 1. On February 22, the sales manager told me that the post-February 28 prices for all of the WestlawNext plan components included in the second chart above had not yet been released.
The Update
As soon as March 1 rolled around, I once again asked for the pricing for all of the WestlawNext plan components included in the second chart above. On March 5, my sales rep responded with prices that were not broken down by plan component.
I responded with an e-mail reminding him that I had requested the pricing for all of the WestlawNext plan components included in the second chart above. And I waited. And I waited.
Last week, I spoke to him on the phone and requested the same information. And I waited. And I waited.
On Monday, I e-mailed the sales manager, asking for the same information. The good news is that I got a quick response. The bad news is, here’s the response I got:
We can’t break out pricing by component. Pricing is derived based on the totality of the package and those prices are provided to you below [i.e., in my rep's previous e-mail].
Oh, really? I shot back:
With all due respect, [my rep] previously broke out the pricing by component. Therefore, I know you can do it.
When I sat down to draft this post Monday night, realized that my sale’s rep’s March 5 e-mail gave a price for a package (which I’ll call 3b) that wasn’t included in the first round of proposals.
As mentioned above, West refused to provide updated prices for plan components in the updated packages; I calculated the figures in the chart above using the ratio of the prices of the plan components as stated in the first round of proposals to the total plan prices in that round. Additionally, to facilitate comparison and analysis, in this post, I changed the numbering of the packages from the numbering my rep used in his second round of proposals—which doesn’t correspond to the numbering used in the first round of proposals.
As I explained to the sales manager:
There are a number of discrepancies between the content included in the three Proposals included in [my rep's] February 8 e-mail to me and the content included in [his] March 5 e-mail to me . . . .
* * *
. . . [B]ased on my conversations and correspondence with [my rep], it was my understanding that WestlawNext would not include either Results Plus or Law Reviews & Journals as separately available plans. Please clarify whether: (1) West has changed its mind, and has decided to offer Results Plus and Law Reviews & Journals in WestlawNext; or (2) [my rep] mistakenly included these items in Package [3b] in his March 5 e-mail.
Third, the disparity in prices between Packages [1] and [2] ([in the] March 5) e-mail doesn’t make sense. [My rep] previously explained to me that National Secondary Sources—Premium includes more content than the All Analytical Library. That is backed up by the fact that, in his February 8 proposals, All Analytical was priced at $209.55 while National Secondary Sources—Premium was priced at $419.65. Yet, in the current crop of “Packages,” the package that includes National Secondary Sources—Premium (Package #[2]) is more expensive than the one that includes All Analytical (Package #[1]) (the two packages are otherwise identical).
Finally, as mentioned in my previous e-mail, are the “package” prices quoted in [my rep's] March 5 e-mail the prices before application of the 45% 3-year contract discount or after application of that discount?
Here’s the sales manager’s response:
You are correct that there were some discrepancies in pricing and content in the multiple communications we’ve had. I apologize for these discrepancies, which were errors on our part. I’m sorry for the confusion.
It appears that the loss of ResultsPlus is the biggest issue for you. ResultsPlus is not available on WestlawNext and there is not an exact equivalent product or functionality. If ResultsPlus is a significant factor in your research process today and if the proposed alternative content in combination with the overall WestlawNext benefits are not a good alternative, I would suggest that you keep your current Westlaw plan.
I realize that you asked for more detail on the discrepancies you noted, but e-mail communication does not lend itself to a consultative and efficient conversation about your preferences, and frankly hasn’t worked out well for you so far. I believe an in-person conversation would provide a better forum to address pricing details and how the benefits of WestlawNext can provide you with a superior research experience.
If you have an interest in WestlawNext in the future, please feel free to call me directly.
And my reply:
Are you refusing to discuss this via e-mail? All I asked for in early March were updated prices for the proposals that [my rep] presented me with in early February. Results Plus is in this discussion because (as you now concede) [my rep] mistakenly included pricing for it in his March 5 e-mail to me.
I am fully familiar with the benefits of WestlawNext. I have neither the time nor the desire to meet face-to-face with you or [my rep]. (Don’t worry about losing a sale because of my refusal to meet with you in person: I’ve signed two three-year contracts without meeting with a Westlaw rep in person.)
The complexity of West’s pricing structure, combined with the fact that the reps clearly are not familiar with what is being offered (as demonstrated by the facts that (1) [my rep] “forgot” to mention that the pricing in his February 8 e-mail expired on February 28; and (2) more than a month after WestlawNext launched, [my rep] quoted me prices for plan components that don’t even exist in WestlawNext) make it necessary to conduct all negotiations in writing.
Furthermore, you have not responded to [my] questions [concerning application of the 45% 3-year contract discount and the disparity in prices between packages 1 and 2].
If you refuse to communicate further with me by e-mail concerning this matter, I request that you put me in touch with your supervisor.
The Questions
Do you think my experience is an accurate reflection of how West is handling its WestlawNext negotiations? Is my rep unusually incompetent? Or is West punishing me for being outspoken about their pricing strategy?
And why hasn’t the “traditional” legal press (i.e., publications like the ABA Journal or the National Law Journal) written anything about WestlawNext pricing? Could West’s substantial advertising spend (and, in the ABA’s case, sponsorship dollars) have anything to do with it?
Update 3/18/10, 10:15 p.m.:
Here’s the latest round of e-mails. First, the sales manager to me:
To verify, Results Plus is not part of WestlawNext and not an option.
I will try to explain the differences between package [1] & [2], but without doing a full needs assessment, it is difficult to recommend the rate package for your needs. This is why a phone call is recommended.
Package [1] does contain different information than Package [2]. You would have access to Regulations Plus which is our annotated CFR; State Jury Instructions and Key Rules. This option has always been the most expensive.
Package 3 takes out those databases.
The All Analytical is less expensive but it does not have State Jury Instructions, Key Rules nor CJS.
The package prices are the final prices. No other discounts would apply.
I hope this answers your questions.
My response:
First, [my rep] did a needs assessment before providing me with proposals on February 8: I explained my goals to him and he reviewed my usage. If you don’t understand my needs, you should speak to [my rep].
Second, your statement that Package [2] omits three items that are in package [1] is incorrect. The following is copied directly from [my rep's] March 5 e-mail (I have added the red highlighting).
Package #[1]:
All Cases & Statutes NY Gold w/Regs Plus
All Analytical Library
Price: $1102.14/month
Package #[2]:
All Cases & Statutes NY Gold w/Regs Plus
National Secondary Sources—Premium
Price: $909.48/month
Both packages include annotated regulations. Are you telling me that the only difference between All Analytical and National Secondary Sources – Premium is that the latter also includes State Jury Instructions and Key Rules? If so, that is inconsistent with [my rep's] February 9 e-mail to me, in which he stated: “Re: The difference between All Analytical and National Secondary Sources, premium, is primarily the restatements and CJS. I haven’t cross checked all the databases (the list is too long), but those are the major titles.”
Third, the proposal in the February 8 e-mail containing All Analytical was less expensive than the package containing National Secondary Sources—Premium ($567.05 v. $777.15). As you can see from the above, with the new packages, the one containing All Analytical is now more expensive than the one containing National Secondary Sources—Premium. That (and not the fact that the two plans aren’t the same price) is what doesn’t make sense.
Fourth, you still have not addressed my request for a breakdown of the prices into plan components.
Your inability to get your facts correct and your refusal to respond to a simple request for a detailed breakdown of the package pricing (despite the fact that [my rep] previously provided me with precisely that information in connection with the original proposals) is wasting my time. Please advise me of the name of your supervisor.
Written by Lisa Solomon on February 25th, 2010 · 3 Comments
WestlawNext was the topic of the day on The Law Librarian show on Blogtalk Radio last Friday. Although I wasn’t able to listen to the show live, I caught the recording.
Though much of the discussion was focused on the WestlawNext algorithm, the participants touched on pricing as well. One of the featured guests expressed this concern: “If this is as cool as it appears, it widens the gap between what large law can do versus the self-represented litigant or even the small law firm. Because large law firms can afford to buy this right away . . . .”
Later, one of the guests, extrapolating from the fact that 80% of lawyers in the country practice in firms with fewer than 20 lawyers that don’t employ law librarians, posited that most of West’s revenues come from small firms.
Greg Lambert recounted the disdain of his co-blogger, Toby Brown, for West’s excuse for charging a premium for WestlawNext (which is that the company has invested significant resources in the upgrade). I agree with Toby’s view that customers expect a company like West to take R&D costs out of its own pocket, rather than so blantanty reaching into its customers’ pockets to cover them.
Marcia Dority Baker
How many people are firm librarians? have you bought westlawnext yet?
Mar95
I’ve had the my rep onsite and had a demo. The product looks great, much simpler for users, the problem is the pricing.
mar95
It’s being sold as a seperate product – $900 month in addition to our current subscription. Or there is a pay-as-you-go option, $10 per search, $5 to view/print document, $2 for keycite
mnlawfirmlib
Does anyone else feel reps weren’t very well prepared for the rollout? While I’m glad TR invited bloggers to preview it and greatly appreciate their insights and feedback but reps seem behind the 8 ball and don’t have all the information.
mnlawfirmlib
Example of conflicting information: our rep told us it was $60 per search.
weblawlib
But if you’re able to bill back most Westlaw charges, how does this impact a law firm library budget?
Ken Hirsh
Many corporate clients want flat billing from outside counsel
mnlawfirmlib
That’s just it – we’re not able to bill back many charges b/c many large clients won’t pay for online research or attorneys write it off for a variety of reasons.
cblib
recovery rate is never where it needs to be. i can’t take risks.
Marcia Dority Baker
Hmm, are small firms West’s bread & butter?
mar98
I think smaller firms are probably very important business, many don’t keep books, and just use electronic material on West.
I think it’s fascinating that large firm librarians think that small firms are important to West’s bottom line, since my WestlawNext upgrade negotiations have led me to believe that West isn’t interested in the solo market at all.
Finally, I’m going to take this opportunity to update my last post (for some reason, the update is breaking that post):
Update 2/25/10, 8:30 p.m.
On Monday, I received a response (by snail mail) from my rep’s sales manager. Included with the response was a long list of the databases included in the National Secondary Sources – Premium plan. Although I haven’t had a chance to review the list in detail, as I expected, it appears to be nearly identical to the All Analytical Library content (which, as noted above, is far from comprehensive, and is nowhere close to offering equivalent value to the sources available in Results Plus), plus Corpus Juris Secundum.
The sales manager’s response to my pricing questions was classic West:
There are no URL [sic] or press releases regarding our pricing modules or programs. As I stated earlier, that information is confidential.
Oh, and the post-February 28 prices for all of the WestlawNext plan components I discussed with my sales rep? “That has not been released.”
So, let me see if I have this straight: First, my sales rep quotes me prices for several WestlawNext libraries. Weeks later—after I prove myself to be a tough customer—the sales manager tells me that my rep forgot to mention that those prices are only the introductory prices. But he can’t tell me what the regular prices will be, even though they’ll be going into effect next week.
While I don’t have a business or marketing degree, I know a little bit about marketing from personal experience. Whenever a company offers a special introductory/early bird price, they tell you what the regular price will be. Why? To motivate you to buy now. And when a company offers an early bird price, they actually advertise it; after all, what’s the point of creating urgency if nobody knows about the special offer?
My last post is two weeks old. I’ve invited West to respond to the issues. A week ago, I raised them in a comment on West’s own blog. Other bloggers have commented on the lack of pricing transparency. Yet West hasn’t offered an official response. The company’s silence speaks volumes about the regard in which it holds its customers.
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