Legal Ethics Forum

Lawyer's Blog Causes Judge's Ire

In an April 27, 2006 story in The Recorder, Pam Smith reports on a DA who blogged about an open case, and a judge read it. [edit: Story now available for free here] Boiled down, after reading the blog postings -- in which the prosecutor called his opposing counsel "chicken" and some titles that reportedly could not be repeated in polite conversation -- the judge reportedly called his conduct "juvenile, obnoxious and unprofessional."

The lawyer apparently testified that he used password protection or some other security measure to limit access to only a few friends, but somehow access became unrestricted, perhaps due to a security problem with the website.  Interestingly, the judge wrote that the attorney should have known that like e-mail his posts might eventually be "uncontrollably redistributed."

In the speech referenced below, I talked about this sort of problem and predicted it might happen -- I'm not happy for the parties involved here that it did, but hopefully this will encourage lawyers to be careful, firms to adopt policies, and clients to take notice.

Blawgging Ethics

I was fortunate to be, I think, the first person to speak on the legal ethical issues of blawgging.  Joe Gratz, a recent graduate, "live-blogged" the thing, and you can read his transcription here. 

I can't summarize the entire conference (which was fantastic) but I will say that blogging and blog-like technology appears to be the wave of the future.  I think what we have coming is more of "push" than "pull" technology:  the 'net will become geared more toward providing to you information you've asked for, rather than you having to go seek it.

Anyway, blogs are having a tremendous impact and the whole thing was quite interesting.  The ethical issues are summarized quite well in Joe's site, and if you have comments, let me know.

We're Blushing

At the ABA Techshow, our site was listed as one of the 60 sites to see.  There are some other cool sites listed there -- including some neat powerpoint templates to get for free, alternative search engines, sites listing internet-related cases, and so on.

Emory Seeks Ethics Center Director

From Prof. Robert Ahdieh -- more details in the continuation of the post:

Emory University is soliciting nominations of candidates to serve as Director of its Center for Ethics.  As a member of the University's search committee, I'm hoping to ensure that candidates with interest in legal ethics are aware of the position, and consider applying.  The substantive text of the University's announcement is excerpted below.  In its own words, however, the University is looking for "an innovative and entrepreneurial leader with established ethics scholarship, who is capable of inspiring an increased commitment to research and scholarly productivity," thereby "accelerating the development of its Center for Ethics to national and international influence."

If you should want additional information, or have questions, please do not hesitate to be in the touch with me.  Additionally, if you prefer, you can make direct contact with the chair of the search committee, Marshall Duke ([email protected]), of Emory's Psychology Department, or the the search consultant managing the search, Jon McRae ([email protected]).

-Robert Ahdieh

Robert B. Ahdieh
Associate Professor of Law
Emory Law School
1301 Clifton Road, N.E.
Atlanta, Georgia 30322
404-727-4924
404-727-6820 fax
[email protected]

When to Teach PR?

I had a long talk this morning with one of Mercer's most incredible faculty members, Jack Sammons about the challenges of teaching Professional Responsibility (we call it "Law of Lawyering").  At Mercer, it's taught in the 5th semester.  I've taught it here, at the University of Texas, and at University of Houston Law Center, all as third-year courses.  I wonder if it makes sense to put the course earlier?  Jack's view was that each placement has its own plusses and minusses, but that only in the third year do students have enough context to fully appreciate the course.  He's right, of course, but cutting against it is that as 3Ls they tend to be less engaged with law school, more focused on the MPRE, and more jaded than 2Ls.

Anyway, what thoughts you all on this?  No matter where it is, this is the toughest course in law school to teach, I believe.

Patent Litigation Conflicts

Under the Model Rules, we know that you can't sue a current client, even in an unrelated matter.  On the other end of the spectrum, we also know that there's nothing improper about representing two parties, even though they compete economically.  Both propositions are well-known.

In between, there is obviously a range of behavior that, at some point, crosses the line from permissible to impermissible (absent consent), and, ultimatley, to impermissible even with consent.

Suppose Firm 1 is hired by Client A to bring suit against some potential infringers.  Client A discloses a list of 5 possible infringers to Firm 1.  One client on that list is another client of Firm 1's, Client B.  Firm 1 probably should tell Client A that Client B is a client (AWD got sued several years ago for failing to do so, as this could constitute an undisclosed material limitation on the lawyer's ability to represent Client A).  Obviously, the firm can't sue its own client.  Can it ethically represent Client A against non-clients, when as a result the firm might be creating rulings (e.g., Markman decisions) that will be used against Client B? 

Thoughts?  My own view is that this creates some risk, and there is some caselaw on this "indirect adversity" issue, holding that essentially a lawyer can't help one client "make a case" against another client, even if there is no direct adversity.  None of that authority, though, is in the patent litigation context, and I'd have to ponder it more than I have to have a real answer.  But what do you think?  Is it consentable?

Andrew v. Beverly and Some Enforcement Problems

I want to offer some thoughts on Andrew v. Beverly, which David mentioned in his earlier post.  I share (what I read as) David's reaction that, absent some evidence that the conflict in that case tainted the analysis in the infringement opinion letter, there is no reason to believe counsel  was not legally competent with regard to patent issues.  There is less than no reason to believe that Beverly failed to act with due care (as that term is understood in this context) in securing and relying on the  letter.

I don't think the court seriously questioned the competence of the patent analysis in the letter, however.  I read the court as excluding the letter as part of a strategy to solve an enforcement problem. 

The firm that issued the letter wisely declined to represent either side in the litigation, so it could not be disqualified from the litigation as a penalty for undertaking conflicted representation.  The firm probably will not be disciplined for the violation.  (I do not have data on the question, but my sense is that bar counsel do not consider conflicts in commercial matters to be a high priority.)

For these reasons, I think the court thought it had to exclude the letter from evidence in order to ensure that the firm would be punished for engaging in conflicted representation.  The basic logic is simple enough--if the letter is not excluded, the infringement defendant client suffers no harm from the conflict, and therefore has no claim against counsel based on the conflict.  That would imply a "free" violation of rule 1.7, a prospect the court found unacceptable.  The court issues a ruling prejudicial to the infringement defendant precisely in order to create harm from the conflict, thus providing that client with a basis to sue the lawyers. In the court's words, "Beverly may seek recourse from Barnes & Thornburg elsewhere if it desires." 

The strategy of making the client suffer for the lawyer's errors is common enough.  (It is made explicit in Judge Easterbrook's opinion in U.S. v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir. 1994).)  Opinions would no doubt vary on whether it is desirable as a general rule.  (It is worth noting, however, that disqualification is itself a form of discretionary non-disciplinary enforcement, which we can think of as an economic sanction in the amount of foregone fees.)

There are several reasons to question the strategy in this context, however.  To begin with, suppose the defendant prevails on liability in the infringement action.  There then would  be no damages to enhance (the letter is part of a due care defense against a claim of willful infringement, and the penalty for a finding of willful infringement is the enhancement of damages), and the conflicted representation would go unpunished. 

Even if the defendant lost on liability, and damages were enhanced for willful infringement, the amount of the enhancement would depend on the baseline amount of infringement damages, and that amount bears no logical relationship to the conflict.  The fit between the violation and the contemplated enforcement is therefore pretty poor.

Another objection is that the fact of the conflict would seem to make the letter more reliable, not less.  If the patentee's own lawyers think there is no infringement, what more could a prospective defendant want?  (I'd love to argue that to the jury, though I bet the court would grant a motion to exclude references to the conflict when considering the letter.)

In addition, the court was wrong to say, as it did, that the letter had to be excluded in order to put the parties in the position they would have been in absent the conflict.  If the firm had caught the conflict and refused to write the letters, the defendant no doubt would have sought (and, presuming the actual letter was competently researched, probably obtained) a letter from some other firm.   The defendant would not have gone without a letter at trial, which is the position the court's ruling put it in.

This point raises a final one.  The conflict did indeed deprive the patentee of the loyalty of it's counsel, but if I am right that the defendant could have obtained an opinion somewhere else, the court's ruling puts the patentee in a better position than it would have been in had counsel remained loyal, and turned down the request to draft the letters.  Had the firm done that, the patentee still would have faced a letter at trial, whereas under the court's ruling it does not. 

The court did not have to do that.  The patentee could sue the firm for writing the letter, just as the infringement defendant could sue the firm because the letter was excluded.  There is no reason why the infringement defendant is a more appropriate breach of fiduciary duty plaintiff than the patentee.  If anything, the party deprived of loyalty should sue for that deprivation, and in this case that is the patentee.

My guess is that liability in such a case would be easy to establish, but that the plaintiff/patentee would have a hard time establishing much in the way of damages (beyond, possibly, fee disgorgement for work on the patents in suit).  Although causation would probably not be a good defense to liability for breach of the duty of loyalty (as opposed to care), the causation argument would be valid with regard to the existence and extent of damages.  If that argument works (and I bet the depositions would provide a strong basis for it), then the court's ruling puts the firm in a worse position than it should be in, because its violation caused little harm as a practical matter.

What the firm did was wrong, true enough, but the court's remedy seems out of proportion to a realistic assessment of probable harm.

DM

Disciplinary Authority Experience with Rule 3.5

I am on a task force that is considering whether to recommend a change to the Massachusetts version of Model Rule 3.5.  Our version is quite strict relative to other jurisdictions in that it prohibits lawyers from initiating contact with jurors after the jury is discharged "without leave of court granted for good cause shown."  In contrast, the Model Rule allows lawyers to initiate contact with jurors after the jury is discharged without having to get court approval.

I am trying to find out the experience of bar disciplinary authorities in states that have a liberal version of the rule (i.e., allow lawyers to speak with jurors after discharge without having to get court approval).  I would be very grateful to hear by email from bar disciplinary authorities in these states regarding whether these jurisdictions have had many (or any) complaints from jurors about lawyers taking advantage of a permissive framework.  I'd also be grateful if you could tell me about any adverse consequences associated with this more liberal rule.

Blog Tales?

I'm giving a talk on ethics and blawgging at a seminar in San Francisco on April 21st, and wondered if anyone had any war or horror stories about lawyers and blawgs.  Has someone said something stupid about a client, revealed confidential information, etc?  Would love to have stories, even if genericized.  Post here or email me [email protected] Thanks in advance!

"Materiality" Isn't Controlled by 1.56

An opinion by a panel of the Federal Circuit recently held that the enforceability of a patent is determined by the "would the information have been important to a reasonable examiner" standard, and not the (arguably) narrower standard established in 1992 in 37 CFR 1.56.  For reasons I wrote about long ago, I think that's the right result.

It's also an important rule of law that may create some problems for patent lawyers.  Rule 1.56 defined information that had to be disclosed to the Patnet Office as being either (1) information that, by itself or in combination with other information, would establish the invalidity of a claim or (2) information that contradicted a position on patentability the applicant was making before the Office.  The "statutory" standard was no so limited.  Suppose (and through conversations I've had, I believe this has happened) last year a lawyer decided not to submit information because, though a reasonable examiner might have found it important, it was not within Rule 1.56.  Suppose today a lawyer is using a form that explains the duty of disclosure to applicants by parroting the language in 1.56.

If either resulting patent is issued, unenforceability could result.  In the former case, the lawyer will may only have his lack of intent to protect him.  In the latter situation, if the client's failure to disclose information is held to be inequitable conduct, the client may sue the lawyer for (allegedly negligently) failing to advise the client that it was not enough to comply with 1.56.

This is more a heads up for those of you out there.  I've had several conversations with lawyers who didn't know of this opinion, or were not aware of the possibility that 1.56 would be irrelevant to enforceability.  All compliance with 1.56 means is that the OED can't take your license away.