By Paul Fletcher
The Virginia State Bar Council has approved plans to offer all lawyers in the commonwealth free access to an online legal research program.
But in doing so, the VSB likely will face an antitrust lawsuit from Geronimo Development Corporation, provider of the Casefinder legal research system. Geronimo, a Virginia corporation, is based in Minnesota.
At its meeting at the Omni Richmond on Feb. 18, the members of council voted to give the Executive Committee the authority to enter into a three-year contract with one of three finalists who responded to the VSB's Request for Proposals.
VSB President David P. Bobzien said the finalists were:
Members of the bar would be able to reach the system through a portal on the VSB's Web site, he said.
Providing a free legal research tool to all Virginia lawyers has been an initiative encouraged by Virginia Chief Justice Leroy Rountree Hassell Sr., who has been urging the VSB to do more for its members. Hassell remains supportive of the effort, Bobzien told the council.
Exchange of letters
Shortly before the council met, the owners of Geronimo, O. R. Armstrong and Elizabeth J. Oyster, mailed a letter addressed to Bobzien, but copied to all 76 members of council. They included copies of an exchange of letters to the bar from their lawyer in Minneapolis and back from the Attorney General's office.
In December, their lawyer, Mark A. Jacobson, wrote Bobzien and VSB Executive Director Thomas A. Edmonds on Geronimo's behalf, calling the VSB's effort to provide a legal research system to all members "a clear violation of state and federal antitrust laws."
Because all lawyers are required to belong to the VSB, Jacobson said, the bar "controls virtually all potential purchasers of the product my client manufactures - a computerized legal research system with a specific focus on Virginia law and authority."
Armstrong and Oyster both practiced law in Fairfax before developing their Casefinder product in 1989; they moved to Minnesota in 1991.
In antitrust terms, the lawyer wrote, the VSB's plan is "an agreement among all or almost all of the buyers of a product to set prices, purchase collectively and refuse to deal with all but one chosen supplier."
He added that if the VSB goes forward with its plan to purchase a service and distribute it free, "it is likely that Geronimo's business, which consists entirely of marketing its Virginia-specific legal research service, will be completely destroyed."
Geronimo did not tender a bid in response to the VSB RFP, Jacobson wrote, because he said that any supplier who enters into an agreement with the bar also would be violating antitrust laws.
On Jan. 27, Assistant Attorney General Sarah Oxenham Allen responded to Jacobson, rejecting his arguments. She said that the VSB does not control all potential purchasers on online legal research services, and that there would be no prohibition by the VSB preventing members from using any legal research tool they wish.
Jacobson's assertions that the plan would eliminate competition, she wrote, "do not reflect marketplace reality."
In their own letter, dated Feb. 8, Armstrong and Oyster repeated an argument made by their attorney: The 1996 Joint Legislative Audit and Review Commission report studying the VSB addressed the provision of computerized legal research services.
Jacobson had quoted the JLARC report as saying that such a service is "one of several commercial activities … which are unusual for State agency involvement" and saying that "(t)he provision of these services has no direct link to the Bar's central mission of regulating the legal profession."
JLARC concluded, Jacobson wrote, that the VSB should not participate in "soliciting subscribers for these services" for several reasons, including the fact that such activity "raises potential issues regarding unfair competition" and could "place other vendors at a competitive disadvantage due to the mandatory nature of the Bar's membership."
Armstrong and Oyster noted, "[T]his independent report raised the same antitrust concerns our lawyer raised in his letter to the VSB."
Questions
During debate on the motion to give the officers the authority to enter into an agreement, members asked Bobzien about the Geronimo letters.
Richmond attorney Boyd A. Collier Jr. asked whether the bar was inviting litigation.
Bobzien responded that after hearing from Geronimo a second time, "The Office of the Attorney General saw nothing that would change their opinion."
What about the JLARC report, asked Henrico lawyer Daniel Rosenthal. "Did the Attorney General address that?" he asked.
Bobzien noted that the AG's office did not discuss that issue. But he gave insight into Hassell's view about whether an online system was part of the bar's mission.
"In conversations with the court, it is the court's view that regardless of the admonition in that report, that [the online research system] is precisely the kind of service we should be providing."
Glenn C. Lewis, a Northern Virginia representative who just entered the leadership loop of the Virginia Bar Association, asked whether the council could take a step short of preauthorizing the officers to act.
Bobzien then addressed an issue that had been raised by both the VBA and the Virginia Trial Lawyers Association, about whether the VSB was moving into the voluntary bars' territory.
The VSB, he said, "has no agenda to have a slippery slope" and start providing other services similar to those offered by voluntary bars.
He added that Hassell met with leaders of both the VBA and VTLA to assure them that "he does not see this as a move for the VSB to aggrandize itself."
On a voice vote, the council approved giving authority to its officers to go forward.
Lawsuit on the way
And that move will spawn a federal antitrust suit, said Armstrong.
"We have tried twice to dissuade the VSB from this action. Our efforts were for naught, thus, it would seem that litigation is the only remaining option," he said.
Any lawsuit against the VSB would be defended by the Attorney General's office, which bills other state agencies for its services.
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