You have asked this Committee for an opinion about the appropriateness of purchasing data from another lawyer to assist you in representing a plaintiff in a civil matter. You have provided no information about the proposed charge except to say that it will be held in escrow and will not be payable unless you obtain a summary judgment in your case. You also have advised that the other lawyer acknowledges that a portion of the data has been placed under seal by judicial order but claims that the data was obtained prior to the entry of the order and independently of that lawyer's involvement in the case giving rise to that order. Although your inquiry is not complicated, the Committee is of the opinion that it does not have enough facts to give you firm guidance.
As you probably know, lawyers occasionally do develop and sell packages of data, particularly in the product liability field. Typically, however, the charge reflects the actual costs of developing and publishing the material, and the cost appears little different from that necessary to retain consultants or to obtain outside legal research. It is the opinion of the Committee that the purchase of data from another lawyer in this manner is not proscribed by the Rules of Professional Conduct.
However, the references in your inquiry to the manner of payment and possible source of the data lead the Committee to believe that your proposal may differ significantly from these transactions. Without additional facts, the Committee can only alert you to the possibility that the proposed arrangement may well violate a number of rules. For instance, it may violate Rule 1.5 pertaining to the size and sharing of fees if the nature of your arrangement makes the payment appear to be a legal fee. It may also violate Rule 4.4 pertaining to methods of obtaining evidence if the other lawyer uses improper or illegal means of developing the data. Finally, it may also violate rule 8.4(a) if the proposal involves your inducing the other lawyer to violate the Rules of Professional Conduct or involves your violation of the Rules through the acts of that other lawyer.