I think that one of the most obvious applications of the wiki model is in the legal space, and no surprise, it’s been launched: wiki-law.org . I think that this site has the potential to significantly change the practice of law.
My motivation and likelihood to contribute to this site is far higher than it is to contribute to Wikipedia. Like many businesspeople, I already have a library of template contracts; why not share them? (And I’m not even a lawyer.)
I held an email interview with Pangea3‘s Vice President of Litigation & Research, Dan Savitt, about the site. (Dan is a recovering litigator.)
Teten: What other online legal resources do you consider comparable or competitors to wiki-law.org?
Savitt: FindLaw is a common and widely used resource for a broad array of areas. But it isn’t always well-maintained, with broken links and such and it isn’t always intuitively organized.
My favorite free legal service, albeit not entirely open source, is the Legal Information Institute’s site (run by Cornell Law School). I know that LII is developing an open source legal encyclopedia but is extending invitations to only its members. Law.com is a good resource for legal news.
Teten: When A hires B to do legal work for him, who owns the text of the resulting contract? Does A have unlimited rights to post that text on a wiki, share it with friends, etc.?
Savitt: I’m not sure but the terms of the engagement would likely govern, with the default being that the client has unlimited rights to do what he wishes with the work so long as the attorney did not reserve rights in it. Generally speaking, the attorney would not retain any property rights in the legal content of the document– because the law isn’t copyrightable — although the attorney could retain a property interest in the format of the contract if the form is unique and the attorney takes steps to protect his interest by imprinting the form with a copyright notice and a reservation of rights.
For example, Blumberg is the dominant publisher of legal forms. Its forms are copyrighted. And Blumberg has 10 different forms of subpoenas for 10 different situations. Now, Blumberg cannot copyright subpoenas in general. Anyone can produce one, and Blumberg has no right to claim that it has a property right in all subpoenas because it contains the same language as its subpoenas. But it can have a copyright in the look of its subpoenas because it originated the look of its subpoena and the look was unique and not already in the public domain.
Another example is the cases that you pull down from Westlaw or Lexis. You will note that those cases have copyrights too — but the copyrights are limited to the headnotes and Westlaw’s or Lexis’s added content, like page cites or other editorial additions.
Then there is the issue of intent/fair use, etc. If you go onto thesmokinggun.com or findlaw, you will find many examples of copyrighted materials, contracts, subpoenas, etc. But these sites aren’t violating copyrights, because the documents were introduced into the public domain; the senders had no expectation that the documents would be kept private; the documents are not unique or may not have copyrightable materials; and the posting party put the docs online for newsworthy purposes/ for the public benefit.
But as the Supreme Court’s decision in MGM v. Grokster last summer emphasized, a poster may be held liable for copyright infringement if it posts copyrighted material on-line with the intent to encourage users to infringe the copyrights even if the main thrust of the site is for lawful purposes. "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
So if you are served with a subpoena on a Blumberg form, and you then post that form on-line with intent that people should use/copy the form for their own subpoenas (or otherwise know that people will use it for infringing purposes), then the poster may be liable for copyright infringement even if there is a substantial non-infringing use of the product/website.
Teten: In many cases, there is no formal term of engagement between a client and counsel. Client just says, please help me analyze/draft X, and the counsel does that. If there’s no formal documentation of ownership between the two parties, what should we assume are the ownership rights in a given contract?
Savitt: First off, New York — where I’m admitted — requires attorneys to enter into a formal written engagement agreements with their clients before beginning any legal work, so your question deals with a situation that isn’t or at least shouldn’t occur as often as you suggest. It’s just good practice, moreover, for an attorney to have an agreement in place that clearly defines the terms of the engagement, including who owns the resulting product.
Nevertheless, if, as you suggest, there is no agreement or the engagement letter is silent on who owns the resulting work product then, as I mentioned before, I would guess that once the attorney delivered the product to the client, the client then has full ownership rights in the product — be it a contract, complaint, letter or memo — and can do whatever he pleased with it so long as his use is lawful. There are at least a couple of caveats: such as, (i) the creation and delivery of a legal document by an attorney generally does not destroy any pre-existing third party property rights that are incorporated in the delivered product (like my Blumberg example) and (ii) that hypothetically the governing State’s law could suggest otherwise. That being said, I’ve never heard of a case where an attorney demanded that a client return all copies of a contract or memo he drafted because the client’s use purported violated a common law property rights. (The issue of a retaining lien is different and goes simply to enforcing the bargain between the attorney and client.)
Teten: Assuming wiki-law is successful, which is a reasonable assumption given the astonishing popularity of wikipedia.com, how will it impact the legal profession? In particular, how will it impact the "bread-and-butter" legal work that makes up a high percentage of the typical law firm’s revenues?
Savitt: I don’t see very much of a financial impact. If anything, it will detract business from other form providers. That’s because the beauty of law is that it is broad enough to cover new situations, and new situations rise up every new day. What is good for A yesterday may not be what B needs tomorrow, even though B believes that his situation is no different than A’s. How do you ultimately know that A’s form is good? It gets tested; modified and improved; and tailored. Ultimately, forms are only as good as the persons who use them.
Teten: Which is exactly the point of the wiki!
Savitt: True, but there is more to the law than cases, statutes and contracts. In the end, those are only tools. How to use those tools effectively to carry out your legal and business concerns? Well that’s the rub. And it’s awfully close to falling under the scope of practice of law statutes, which are typically so broad that they can capture whatever conduct the state regulators want them to.
Just ask the folks at We the People and look at wiki-law.orgs own disclaimers. We the People is one of several businesses that specializes in selling self-help legal “document preparation” service to non-lawyers using paraprofessionals. (I remember seeing in a couple of unauthorized practice of law regulatory actions that they have offered reference attorneys, who offer suggestions but do not create an attorney-client relationship with the consumers — to their customers as well.) Their target audience is small businesses and consumers who can’t afford to or don’t want to pay an attorney for what they perceive as relatively simple legal tasks.
In essence, the site says use this great resource but caveat emptor and dont blame me if the information is wrong. Ultimately, the reader has to decide for himself if he can rely on the information he finds on wiki-law.org. Is it is dependable? Is it complete? Is it up to date? How is someone supposed to know the answer except through professional expertise, intuition or blind faith? Lawyers know that the law doesnt always work intuitively. Im not suggesting that only lawyers can make that determination but odds are they will, as a group, be much better prepared than non-lawyers. Wiki-law could be very useful in educating non-lawyers about the law, but it cannot teach the ability to think critically about an issue that is beaten into every attorney beginning with his first year in law school.
Where I do see a tremendous opportunity is for attorneys to take advantage of the resource. I know that there are already dozens of web-based communities where practitioners of similar ilk compare notes and exchange ideas. In other words, the value I see in the site is as a legal resource, whose value will rise or fall depending on the reliability of the contributors, their content, and the strength of the site’s editorial guidelines. It may even work itself into legal opinions once it gains acceptance. I could see wiki-law as the ultimate living legal constitution that aggregates legal discussion, commentary and knowledge. The possibilities are really interesting. But all it takes is one wrong answer and the resources credibility could be mortally wounded causing attorneys and their clients to stay away. Ultimately, the key will be in the content providers and their editorial good senses.
Dan continued
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Interestingly, our interview highlights one of my concerns about of wiki-law in that my answers reflect only my elementary largely uneducated understanding of copyright law as clouded by my experience and understanding of property law in general “Savitt on Copyright”, if you will. But I am not an expert on copyright law and I haven’t reviewed any of the caselaw and secondary sources that are required to give a proper understanding of some of the issues (despite that I included a quote from a recent Supreme Court opinion that I happen to have on my laptop last night.) In other words, I learned long ago as a junior associate that you wouldn’t want to buy this version of Savitt on Copyright. So, I just want to clarify that that my response is more speculation than legal knowledge
That being said, I am sure that lawyers logging into wiki-law could annotate and properly give my responses the critical eye it needs and provide a more thorough response. But that leads to the issue of specific legal advice and independently rendering it to the public (something which we can’t do here at Pangea3). Would the site allow people to pose legal questions and then have anyone — lawyers or laymen — to offer advice tailored to those suggestions?
Teten: I dont think that’s their current model, but that’s a logical service to offer. Ingenio.com and similar sites already offer this sort of access.
Savitt: The State Bar regulators wouldn’t be too happy about that and might see wiki-law or its users as aiding and abetting the unauthorized practice of law, which regulators consider just as bad as engaging in the activity itself.
And then there is the issue of liability for a wrong answer — could the responder/poster be held liable for malpractice or under an unauthorized practice of law? Why not? A court could find that the disclaimer was boilerplate and not want to enforce it. Then again, the (stated) purpose of unauthorized practice of law statutes/prohibitions is consumer protection — and not job protection. Regulators who see it as their duty to protect the public from charlatans posing as legal experts may ultimately see that the public would be adequately protected. 30 years ago, paralegals in a law office were a rarity, and now they are an integral part of any decent sized functioning law office taking on tasks that don’t require the lawyer’s full legal acumen. 15 years ago, contract attorneys doing document reviews were a rarity.
But now even the bankruptcy courts, with their strict fee sharing prohibitions, recognize that they are also an integral part of controlling costs in any decent sized litigation. And in the past few years, the ABA has promulgated amendments to its Model Rules to provide safe harbors for working with foreign attorneys and those amendments have been adopted in one form or the other by many States.
One additional thought, as legal costs have skyrocketed, and there seems to be no corresponding increase in the caliber of legal services to match the increases, the public, both businesses and consumers, are looking for more value: consistent high-quality service, reasonable price, and efficiency from their legal service providers. And they are expanding their sources for that value, which in part is driving Pangea3’s business (although we don’t independently provide legal services to the public): litigation consultants, legal technology providers, paraprofessional legal document preparation service providers and other alternative legal service providers. Wiki-law may fit in there but if and when wiki-law turns from a resource into a provider, well, then my paternal unauthorized practice of law concerns get tripped again.
In the end, intriguing legal issues. I’m having flashbacks to the bar exam as I type this.
Regardless, the site — like Pangea3 — is a natural progression in how law continues to advance and adapt to the world around it, albeit kicking and screaming.
Thanks for the dialogue.
Teten: Thank you! The legal industry has traditionally been marked (or marred) by a notable resistance to take full advantage of technology. I look forward to wiki-law, Pangea3, and other attacks on the traditional model upending the traditional apple cart.
