My name is William Carleton. I am not an attorney at the Davis Wright firm. I practice at the McNaul Ebel firm. Joe Wallin has invited me to write this guest post. The views in this post are my own, and not Joe’s, his firm’s or my firm’s.
As you likely know, all law firms have templates their employees use to generate your original legal documents. Whether you like it or not, law firms generally keep their libraries of these templates under lock and key.
I think this practice should change. By and large, the templates used to generate legal documents should be exposed, to clients and to the public. They should be published on the web under open source terms. Enterprising third parties might even index them or build apps to exploit them (or the knowledge of industry practice inherent in them) and facilitate their use.
Some lawyers object that publishing a suite of templates could expose the publishing law firm to malpractice claims. These concerns need to be worked through, perhaps industry by industry.
Others object that their templates are proprietary to their firm. But this argument, with discrete exceptions, is ironic (to put it euphemistically).
Ownership of most law firm templates is muddy. Although significant investments of time and research can be put into developing or improving a template, in point of practice, templates are most often iteratively improved “on the clock” of projects undertaken for clients. If we analogize the production of legal documents for a given deal to the writing of custom code to customer’s requirements, the template is the firm’s pre-existing IP or library that gets licensed to the customer, and the customization undertaken specifically for the deal is the custom code to which the customer takes title. As for the improvements to the template that the lawyers take from the project to use in the future? You might say the law firm is relying on an implied derivatives license back from the client to use those improvements. However well the analogy to software development practices may hold up, though, it’s very difficult to say that either the client or the law firm “own” the generic template.
There are exceptions. Some clients have forms developed uniquely for their particular business, product or service line, and they can indeed require, as a condition to the law firm’s engagement, that the firm respect a kind of copyright integrity to their forms. Other templates, such as the AIA’s for the construction industry, are guarded closely and arguably serve the purpose of standardization within an industry.
But let me come back to another reason to support the argument that ownership of law firm templates is muddy. It is this: even assuming a firm puts original work into a template “on its own dime,” no sooner is that work put into play (exposed to another firm in the course of a negotiation) than the meritorious bits of it get sucked into the templates of admiring lawyers at the other firm. (Standard forms are thus, paradoxically, both improved over time, and made less standard!)
I’ll post in the future (on my blog or elsewhere) about the benefits of making law firm templates public. And I’ll write about paradigms for doing so. In the meantime, I would love to hear your views.