Can Kentucky lawyers form a legal-research service that does research for other lawyers, and what duties do they owe the hiring lawyer's clients?

Plain-English summary

The Committee answered three questions about a service in which lawyers do legal research for other lawyers. It concluded there is no ethical reason lawyers may not form such a service. As the arrangement was posed, the service works for the inquiring attorney rather than that attorney's client, and the service's lawyers neither correspond nor speak with the client, so the duty runs primarily to the inquiring attorney and the arrangement lacks the characteristics of an attorney-client relationship.

On the second question, the opinion concluded the research service is bound to protect the confidences and secrets of the client. The inquiring attorney must make reasonable effort to ensure those he hires protect the client's confidences and secrets, citing Model Rule 5.1, and the research service's lawyers are ethically bound as well. That duty precludes the service from working for attorneys on different sides of the same case or transaction unless the clients give informed consent; the opinion drew on KBA E-308, which requires that non-lawyers changing firms be screened from cases against former-firm clients where confidential information might be used to a client's detriment.

On the third question, the opinion concluded there is no independent duty of loyalty. While protecting confidences and secrets bars working both sides of a matter, no separate loyalty duty prevents the service from undertaking a research project against a person for whom it is working on an unrelated matter.

Currency note

This opinion was issued in 1987 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: May lawyers set up a research service that sells research to other lawyers?

A: Yes. The opinion concluded there is no ethical reason against it, where the service works for the inquiring attorney and does not deal directly with that attorney's client.

Q: Does the research service owe duties to the hiring lawyer's client?

A: It must protect the client's confidences and secrets. The opinion said the inquiring attorney must make reasonable effort to ensure those he hires protect those confidences (Model Rule 5.1), and the service's lawyers are bound as well.

Q: Can the service work for lawyers on opposite sides of the same case?

A: Not without informed consent. The opinion concluded the confidentiality duty bars working both sides of the same case or transaction unless the clients consent, applying the screening principle of KBA E-308.

Q: Does the service have a broader duty of loyalty to those clients?

A: No. The opinion concluded there is no independent duty of loyalty that would prevent the service from taking an unrelated research project adverse to a person for whom it is already working.

Background and rules framework

The opinion interprets the former Code's confidentiality duty (DR 4-101, the analog to Model Rule 1.6) and applies Model Rule 5.1 on a lawyer's responsibility for the work of those he engages. It distinguishes the confidentiality duty, which it treats as binding on the research service, from a general duty of loyalty, which it concludes does not attach absent an attorney-client relationship with the underlying client.

Citations and references

Rules of Professional Conduct:

• DR 4-101 (former Code; confidentiality)
• MR 1.6 (confidentiality of information); MR 5.1 (responsibilities of supervising lawyers)

Other opinions cited:

• KBA E-308; W. Va. Ethics Op. 84-3; ABA/BNA Manual on Professional Responsibility 31:101

See also

• ABA Formal Op. 08-451: Outsourcing Legal Services
• ABA Formal Op. 00-420: Surcharge for Contract Lawyers

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-318.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-318
Issued: January 1987

This opinion was decided under the Code of Professional Responsibility, which was
in effect from 1971 to 1990. Lawyers should consult the current version of the Rules
of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question 1:

May attorneys ethically form a legal research service to provide legal research to
other attorneys?

Answer 1:

Yes.

Question 2:

Are the attorneys in the legal research service obligated to protect the confidences
and secrets of the clients of the attorneys for whom they perform legal research?

Answer 2:

Yes.

Question 3:

Do the attorneys in the legal research service have a duty of loyalty to the clients of
the attorneys for whom they perform legal research?

Answer 3:

Qualified no.
OPINION

There is no ethical reason why attorneys should not be permitted to form a research service
to be used by other attorneys. WVa. Ethics Opinion 84-3 (ABA Man. Prof. Resp. 801:9004). As
the question was posed here, the research service works for the inquiring attorney, rather than for
the client of the attorney. The attorneys for the research service do not correspond with nor talk to
the client. In such an arrangement, the duty of the research service is primarily to the inquiring
attorney; such an arrangement lacks the characteristics of an attorney-client relationship. ABA
Man. Prof. Resp. 31:101.
At the same time, the research service is bound to protect the confidences and secrets of the
client. The inquiring attorney is required to make reasonable effort to ensure that those hired by
him protect the confidences and secrets of the client (MR 5.1) and the attorneys of the research
service should be ethically bound as well.
The duty to protect the confidences and secrets of the client precludes the research service
from working for attorneys on different sides of the same case or transaction, unless the clients
give their informed consent. KBA E-308 requires that non-lawyers changing firms be screened
from cases against the clients of the former firm where there is a possibility that confidential

information may be used to the detriment of the client. The same principle should apply in this
context.
While the duty to protect confidences and secrets precludes working both sides of a matter,
there is no independent duty of loyalty which would prevent the research service from under taking
a research project against a person for whom the research service is working on an unrelated
matter.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.