I was recently appointed Chair of the Professionalism & Ethics Committee of the American Intellectual Property Law Association (the nation's largest IP group). I am trying to put together a list of ideas to push forward for resolution and, hopefully, action with the group. Any ideas would be appreciated. Among those I am pondering:
Creating a rule providing that patent agents are "lawyers" for purposes of fee splitting rules (they are under the PTO's rule, but they are not under some state rules), and providing that the PTO rule preempts contrary state law.
Adopting the position that, for purposes of access to discovery materials during litigation, a patent attorney or agent is not engaged in "competitive decision making" and so, without more, may have access to proprietary materials from the opposing party.
Advocating for a clearer preemption rule with respect to PTO ethics, so that we'll know when state law ends and federal law begins.
If you are aware of other issues, I'd love to know of them, or if you have positions on these issues to share, I'd appreciate it.
The Florida Supreme Court has a thing about advertising. Here
is an example. A firm runs television ads. The firm name is displayed, but with a picture of a pit bull wearing a spiked collar in place of the usual ampersand. The firm’s phone number, displayed in the ad, is 1-800-PIT-BULL. (The firm specializes in motorcycle accident law, so this sort of logo is not as inconsistent with a desirable practice image as one might think at first.)
The Florida bar complains that the pit bull parts of the ads violate the rule that “a lawyer shall not make statements describing or characterizing the quality of the lawyer’s services.” The ads also are supposed to violate the rule that visual depictions “must be objectively relevant to the selection of an attorney and shall not be deceptive, misleading, or manipulative.”
The hearing referee has both perspective and perhaps a sense of humor. One the first point, the referee opines that the pit bull is not a statement about the quality of the firm but about qualities—pit-bull-like lawyering is just aggressive lawyering, which could be good or bad. The referee says the pit bull passes muster on the second rule as well. It stands for loyalty, tenaciousness, and aggressiveness, which are qualities relevant to prospective consumers of legal services. His report is here.
Unencumbered by either perspective or a sense of humor, the Florida Supreme Court reverses. It knows better than the referee. The average consumer doesn’t think the qualities of a lawyer are different from the quality of representation, so pit bull is actually a sort of warranty of quality, and thus violates the first rule. (The premise here may be right, but it is more paternalistic than I am comfortable with being, even apart from free speech issues, and it should be irrelevant to the main consumer welfare issues.)
The dog violates the second rule, too, the court says, because it is misleading. The court says the ad implies that the lawyers are as aggressive as pit bulls, yet there is no way to measure that claim and thus no way to say whether it is true. The same premise means there is no way to say it is false, of course, but that does not trouble the court, which also takes the time to point out that pit bulls can be vicious and even kill people, and to suggest that such criminality is the message the ad really sends.
Anti-advertising rules are an outrage that would embarrass a less pompous profession, or one with a sense of shame about the claims it is willing to make for itself. The rules are bad economically because, apart from actual fraud (which one needs no special anti-advertising rules to penalize), ads provide information that may well be useful to consumers, and which should tend to drive down prices, which is definitely useful to consumers. To the extent such rules are not redundant with more general laws, they are undesirable.
So what explains the rules? Why do we have them? Such rules are concerned about the dignity of lawyers, not the welfare of consumers. After the Supreme Court struck down flat bans on advertising, so that competition on such basics as price and credentials could improve, bar associations have fought a rear-guard action, restricting as much as they can, generally by defining all sorts of things as misleading. About all that is misleading, however, is the claim that the rules and their interpretations are really about consumer protection.
This opinion exemplifies these points. In fact, the best thing that can be said for it is that the Court said right up front that its main worry is that the ad “demeans all lawyers and thereby harm[s] both the legal profession and the public’s trust and confidence in our system of justice.” The first half of this sentence is just uptight hand-wringing, but the second half is such overstated hooey that it is hard to read without laughing aloud. If a doggy ampersand can bring down the profession, much less the system of justice, it has far greater problems than any anti-advertising rule can solve.
Lawyers are not inherently dignified, and neither is the profession. Whether the profession deserves to be thought of as dignified depends on (i) how its members actually act; and (ii) on the opinions consumers form based on those actions. In forming opinions, consumers are entitled to any information relevant to them, such as whether lawyers do or do not act as pit bulls for clients.
Lawyers who run such ads are the type of lawyers who would run such ads whether they run them or not. The only difference between letting the ads run and suppressing them is that if the ads run people get a more accurate sense of the range of lawyers’ dispositions than they would if the ads are suppressed, meaning (and this is the last straw) that such rules mislead consumers (by giving them a false sense of the dispositions of lawyers) in the name of saving them from being misled.
I hope the lawyers in this case petition for cert and that the Court takes this opportunity to undo the damage it did in Florida Bar v. Went For It, 516 U.S 618 (1995), where it treated the bar’s concern for its own image as a substantial state interest justifying anti-advertising measures. That was an indefensible decision that is responsible for the ridiculous parsing of pit-bull symbolism that we see in this case.
Professionalism aside, anti-advertising rules in general, and this opinion in particular, offend free speech values. Lawyer advertising cases stand out as being the only area of law in
which speech can be restricted by members of a class (lawyers) in order
to make people think better of the class as a whole. That judges are
also members of the class makes things worse. When judges get into the business of deciding how people are likely to
perceive expression, and penalizing that expression based on their
presumed perceptions, they dive into a quagmire the First Amendment is
supposed to keep them out of.
Given the juxtaposition of the referee's opinion with the court's one might be inclined to ask: who is to say what the pit bull means to consumers? Is the referee right, or the Supreme Court? That is the wrong question, though, at least from a free speech perspective. From that perspective the question is whether judges should decide whether the dog gives consumers the wrong idea, and whether the Constitution permits judges from defining an idea as wrong. Apart from fraud, which is plainly not present here, the answer to that question should be "no." It is only that strange notion that the government can restrict speech to make lawyers look good that empowers the referee and the Court to debate pit-bull symbolism here.
Even if one accepts the indefensible premise that the state has a compelling interest in seeing to it that people see lawyers the "right" way, the court's free speech analysis here is too restrictive. The court’s claim that “lawyer advertising enjoys First Amendment protection only to the extent that it provides accurate factual information that can be objectively verified,” is a crabbed and unpersuasively formalistic summary of the cases. For example, lawyers may advertise that they have been certified as specialists, which is verifiable in one sense, but whether the certification is worth anything depends on the procedures behind it, which courts do not delve into and which might well be as subjective as the court’s unsympathetic parsing of the pit bull logo.
Let’s be honest, here. The pit bull conveyed information about the firm to consumers in terms consumers might well use themselves, and which some consumers would deem highly relevant. No consumer would read the ads literally (nor as a threat to do violence to the other side, in one of the Court’s ridiculous conjectures), but they would get the point. What they do then should be up to them, not to censorious judges who want the profession to seem to be more dignified than it is.
If the judges want to serve the public interest by taking something out and shooting it, it should be these rules, not the pit bull.
is a link to the firm and its logo, along with the firm's comments on
the case. Maybe the logo will stay up pending disposition of a cert
The LAT reports that the Justice Department is looking into a case Milberg Weiss (as it then was) filed against AHI health care. The suit was filed at the end of 1995, just before the PSLRA took effect. The story suggests that plaintiffs' counsel wanted to file before the PSLRA took effect, to take advantage of the presumably more plaintiff-friendly rules that act would supersede. I imagine the prosecution story would be something along the line that the perceived need for speed caused the firm to agree to unlawful kickbacks of fees, as are alleged in the Lazar indictment.
It will be ironic if this suit leads to formal charges. For one thing, the '95 Act and it's presumptively most adequate plaintiff provisions did away with the need to rush to the courthouse to be first to file. Plaintiffs lost leverage based on their availability, and a different set of plaintiffs got leverage based on the size of their stakes. Under the new regime, Milberg/Lerach, Coughlin et al did just fine. (See in re Cavanaugh, 306 F.3d 726 (9th Cir. 2002).
For another, the '95 Act did not kill the plaintiffs'-side securities business. Plaintiffs' firms are doing just fine, even adjusting for the fact that Enron-like cases have produced a target-rich environment for them. (If you imagine a continuum of suits ranging from the frivolous to dead-bang winners, and draw a line somewhere that divides "meritorious" from "non-meritorious" suits, then the PSLRA may have eliminated suits close to that margin--on both sides. (Steven Choi discusses this point here.) That marginal affect may or may not be good, depending on the ratio of false positive to false negative findings, but it is a marginal effect, not a revolutionary one.)
The theories alleged in the Lazar indictment are perfectly cogent, though whether they will prove out remains to be seen. One thing is for sure, however. These allegations concern cases that are very old, and they are not getting any younger. That may be a practical rather than an academic point, but it may turn out to be important just the same.
The talk of Judge Alito's Vanguard investments got me thinking of another aspect of judicial ethics relevant to the confirmation process. May nominees ethically promise to rule one way or another on a certain matter? May they avoid promising but telegraph the way they will rule?
The question comes up because Supreme Court confirmation hearings since I went to law school (1987--the year of the Bork confirmation hearings) have been rather depressing exercises in a pre-commitment game. Senators try to extract commitments on the issues they care about; nominees try to say enough to satisfy senators without generating too much opposition. In particular, they tend to talk a lot about their support for widely accepted principles (everyone is for speech and against discrimination, for example), and clam up when it comes to abortion and affirmative action. Both parties do this to the other's nominees.
Does this pre-commitment game have ethical implications for the nominee? I would like to think that it does. Here are two background provisions: Canon 3(a)(1) of the Code of Conduct for United States Judges states: "A judge should be faithful to and maintain professional competence in the law, and should not be swayed by partisan interests, public clamor, or fear of criticism." Canon 3(a)(6) states "A judge should avoid public comment on the merits of a pending or impending action." These Canons only apply to judges "performing the duties prescribed by law," so technically they do not condemn the pre-commitment game, but I like to think they provide some useful guidance.
One Canon that does apply is Canon 2(A), which says that judges "should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." (Canon 4 of the ABA's code of judicial conduct requires that judges always act in ways that do not cast reasonable doubt on their ability to act with impartiality and independence.) Maybe it is just me, but to see nominees play the pre-commitment game makes me think that they can be swayed by partisan interests, public clamor, or fear of criticism.
A nominee is not a justice, of course. A justice has life tenure and a nominee wants a promotion, so one could argue that a nominee who sways like a weak sapling during the confirmation hearing could still turn into sturdy oak on the bench. Maybe so, but I wonder. Once a nominee starts to sway, it seems to me the only question is how strong the incentive to sway is, not whether a person is willing to bend at all. To borrow from the story of Churchill and the Lady Astor, once you know that swaying is possible, it's just a question of price.
If I am right that pre-commitment is ethically bad, then our confirmation process is perverse: to be confirmed to the job, nominees have to demonstrate they can do what they are not supposed to do once they have it. A good utilitarian might respond that all this is just naive blather: the stakes are too high to confirm unknown quantities to the bench. We should stop wringing our hands about judicial ethics and get to the serious business of nailing nominees down as best we can on the issues that matter to us.
This response has the strength of being what people actually do, and perhaps the pre-commitment game does give nominees a sense of how much some of their actions matter to many people. But that is not to deny its ethical perverseness, just to say the benefit might be worth the cost.
I doubt it, though. I would not want to litigate an issue in front of a judge who pledged under penalty of perjury and on national television to decide against me, even on just one issue. I suppose that is inevitable to some extent--if my claim is that price-fixing is free speech I am going to lose, and it won't matter much if a judge has said in a hearing that price-fixing is not free speech--but we can at least minimize the degree to which litigants know they are fighting the hearings as well as their opponents.
As a final thought, it seems to me that the pre-commitment game fosters a certain contempt for the notion of disinterested judging. That might be inevitable--it is true that presidents take ideology into account in nominations, just as senators do in confirmation, so there is no chance of anything resembling a "neutral" process--but it is still regrettable.
As an example, I reproduce below an exchange from the Souter confirmation hearings. The first colloquy is between then-Senator Alan Simpson and Faye Wattleton, of Planned Parenthood. The second is between Senator Biden and Ms. Wattleton. The thing to note is that neither Ms. Wattleton nor Senator Biden seems to take very seriously Senator Simpson's invocation of the Canons. (He seems to be referring to the Code of Conduct for United States Judges, though he mentions the ABA Code; and he may be wrong that Canon 3(a)(6) applies to confirmation hearings. I would have to go back and see if the wording was the same then as it is now.)
I believe you are seriously in error in demanding that Judge Souter answer specific questions on this issue, because he is a sitting judge. And since we have heard a remarkable array of extremely technical discussions over the last few days, which are like going to law school again, let's not forget Canon 3(a)(6) of the ABA Code of Judicial Ethics. It prohibits a sitting judge, and that is Judge Souter, from comment on a "pending or impending matter" likely to come before the Court. He is prohibited from doing that, absolutely prohibited under the ethics of the ABA, who have given him a rating that is the highest they can give. Nearly everyone has conceded that abortion will be before the Supreme Court again, and thus, that subject is covered by the ABA Code. You are really asking Judge Souter to violate the rule of judicial ethics in order that your organizations, both of them, can have advance knowledge of his position on the particular issue of abortion. Why are you asking of Judge Souter that which he is forbidden to answer by the Code of Judicial Conduct?
Ms. WATTLETON. Well, Senator Simpson, I would seriously object to your characterization of our asking Judge Souter to comment on the constitutional protection of reproductive privacy for the basis of our organization's foreknowledge of how he might rule. As I spoke earlier in my comments, our views represent the overwhelming majority of the American people and I sit here, not only as head of an organization but also as an American, the American people have a right to know. Yes, there are judicial ethics. As a matter of fact, I think that there is a law that forbids the judge to answer questions about specific cases, but virtually every aspect of American life at some time comes into question and must be adjudicated. We believe that this is an important aspect of American constitutional law that deserves to be probed very thoroughly. Perhaps it should be seen as something that is integrally important to the integrity of women in this country. We do not consider it an issue that we want to take a chance on. We may have a difference of opinion, but such is the democratic process. It is our opinion without a clear understanding of his judicial philosophy in this area, not how he will rule on Roe v. Wade, that Mr. Souter should not sit on the Supreme Court. . . .
Ms. WATTLETON. I might point out that Mr. Souter chose not to answer the question do you believe that the Constitution protects the right not to procreate. He declined to answer that after having established that he believed that it protected marital privacy.
Senator SIMPSON. I know that. I guess I can only judge that you wish Judge Souter to advise all political litigants that he is not impartial and not using the tools of a judge if he were to hear an abortion case. I think that is what you are asking him to do.
Ms. WATTLETON. I believe what we are asking him to do is to demonstrate his commitment and that he will champion our constitutionally protected rights. . . . .
I do not believe—and this is my concluding question. I do not believe that the nominee should have to answer how he would rule on Roe. I do not believe he should have to do that because I think that sets a precedent that may very well come back and bite everything I believe in, even though I would like to know how he would rule on Roe. Quite frankly, I am not sure what it would tell us even if he told us he would sustain Roe. He might sustain Roe and vote for Webster. He might sustain Roe and say, yes, you can have an abortion in any facility that doesn't have hallways 14 feet wide. He might sustain Roe and say—you know, and so on. So I don't think it would tell us much.
My question to you is: The next nominee, are you going to insist that that nominee say anything beyond whether or not they regard the right of a woman to make a judgment with regard to the termination of a pregnancy as fundamental, a fundamental right? Are you going to ask anything beyond that? Are you going to insist that that nominee tell you how they would rule on Roe, on Webster, and on God knows how many other cases may have come between the time of the last case and the case that may be in question for that nominee? Do you want a specific answer to a specific case ruling?
Ms. WATTLETON. I believe that we are as mindful of the codes and the law as you are here today. We have not in this proceeding nor would we in the future insist upon such an assurance, although parenthetically I might point out that a variety of cases have come up in this discussion and this process. And if we look back at Justice Rehnquist's proceedings, he discussed it and has not recused himself in subsequent cases.
The CHAIRMAN. Excuse me, let me interrupt you there for a moment. I think Senator Simpson, God bless him, notwithstanding reading the Canons of Ethics, if he applied the Canons of Ethics to what was said here, clearly the judge had breached them because he went out of his way and he answered very specifically in a whole number of areas. I am not asking you on technical grounds because of the Canon.
Ms. WATTLETON. Yes, that is parenthetical.
The CHAIRMAN. SO please try not to be a lawyer's lawyer with me, even though you are not a lawyer.
News of yet another conflict of interest angle involving Alito and a non-recusal. Alito's sister, Rosemary Alito, works at McCarter & English, a leading New Jersey law firm. According to new reports, in a case involving a bank, McCarter lawyers other than Alito's sister represented a bank and the Third Circuit denied a petition for rehearing, with Alito being listed as "present" and not being noted as recusing himself. Alito says he has no recollection of the matter. It's not 100% clear whether he participated in the case in any meaningful sense, but for now let's assume that he did.
Prediction No. 1: All across the country, federal and state appellate judges are making discrete inquiries about how their conflicts spotting systems actually work. That is a good thing.
Prediction No. 2 (somewhat more speculative): The Third Circuit did not have a robust system for spotting conflicts of this particular type and raising them to the attention of the sitting judges.
Prediction No. 3: The Third Circuit will conduct a thorough review of its conflicts checking systems.
Prediction No. 4: There will be discussion about which conflicts issues are "non-delegable" and, on the other hand, which kinds of conflicts can only be raised and managed with computer systems.
Prediction No. 5: There will be no credible evidence that Alito ever had a bad intent, but if these small incidents continue to swell in numbers, Alito will have to deal with an "avalanche of popcorn." No doubt there are journalists and others combing the records for more examples.
UPDATE: To recap some of the arguments and counter-arguments being tossed around:
1. One the attack is Nina Totenberg's shameless "Alito cheated a widow" meme. That insinuation, which David McGowan dissected below, ought to be dead now. And with the revelation of a new conflict issue, there's no longer any need to rely upon such a demonstrably false theory. But this issue is driven by politics and insinuations of malice will reverberate.
2. On the attack is the "Alito promised" theme. It's not clear whether Alito made specific promises or more generally promised that he'd recuse himself from cases involving a list of entities. Some accounts are making it seem as if there was a special promise about cases involving Vanguard. If Alito made a special promise about Vanguard, it's harder for him to explain why he participated.
3. On the attack is the "a violation is a violation" theme. That is, the issue is presented without any consideration of Alito's motives or the reasonableness of his conduct. I don't buy that approach, but it may have some traction. When a judge breaks an ethics rule, some people don't need to hear anything more. In fact, the proliferation of conflicts rules have led to a Byzantine web of conflicts situations that lawyers and judges can trip over without any bad intent.
4. On the defense is the "I over-promised" theme. There may be some truth there, in the sense that Alito's promise to recuse may have been broader than the judicial disqualification laws require. Hence, in theory, Alito may have ruled on a case without violating the appropriate legal standard, even if his promise would have required recusal. This defense won't be satisfying to many. After all, a promise is a promise, isn't it? And, on a gut level, if you realize that you over-promised you don't unilaterally relieve yourself of the promise. At a minimum, you create a contemporaneous writing, perhaps even to the Senate, explaining the error.
And yet, this defense is critical to a reasonable person's evaluation of Alito's conduct. If the critics cannot prove that Alito's participation violated the judicial ethics rules -- and it currently appears that they may not be able to -- then they can't claim that Alito's conduct violated the widely standards of judicial conduct.
One important sub-issue is Alito's claim that the promise pertained only to his "initial service" on the bench. In other words, there may be a "technical out" for Alito. We might read the Senate's questionnaire not as asking a seemingly gratuitous question about whether Alito will abide by the governing law of judicial disqualification, or as asking Alito to adopt a DQ standard more stringent than the Congress's own statute adopts, but rather about Alito's early transition from lawyer to judge. If so, these conflicts simply weren't covered by the promise and were covered by the normal statutory scheme, which Alito may have complied with. This is quite plausible to me. As the years began to roll, Alito may have internalized the governing statutory standards (quite properly so) and viewed whatever had been said during the nomination hearings as not being intended to materially altering the all-important statutory scheme.
5. On the defense is the "computer error" theme. It was raised early but some feel it's being quietly dropped now. For me, this issue raises the questions I most want to know. What computer software was being used? Who input the new cases into the system? What names, counsel, parties, etc., were input? What was the administrative process for generating and evaluating conflicts "hits"? Did each judge's chambers review conflicts or did a central administrator, or both? Was the conflicts checking driven by hard copy or soft copy? Did each chamber base the analysis on the disclaimers in the parties' briefs or upon a more general system?
Given that so many of Alito's peers vouch for his personal integrity, the more likely path for an ethics attack on Alito will center on theories of inadvertence, chronic inattention, or even arrogance. The "I over-promised" defense may play into the "he's arrogant attack."
L'affair d'Vanguard (hat tip to someone for the neologism; I forget who; and it's much better than Alito-gate or Vanguard-gate) is further proof that sometimes "legal ethics" is just a brick they throw at you. Bush is weak. His last nominee went down in flames. Hurting Alito hurts Bush. That's all the calculus some will need to attack Alito.
A story today reports on a password-protected discussion forum for trial lawyers (presumably meaning plaintiffs’ lawyers). One lawyer posted comments criticizing a judge’s method of conducting voir dire. A forum member sent the comment to the judge, violating an agreement each member signed promising to keep confidential the discussions on the site.
The posting attorney and opposing counsel each received a letter from the judge notifying them that she had received the post. The Palm Beach County Trial Lawyer’s Association apparently is thinking about trying to have the leaking lawyer disciplined.
I am not familiar with this sort of site. It has 200 members, and is protected from access by non-members, but it does not seem to be devoted to a type of litigation in which the members might have a comon legal interest. (I.e., it is not some sort of Intranet site for Vioxx lawyers, which might be treated as confidential using ordinary principles.)
The trial lawyers' association did not specify the grounds on which it though discipline might lie. I tend to doubt that the confidentiality agreement and the password protection would support any form of discipline. The members of the forum probably do not have a common legal interest, so no joint defense analogy could be drawn. And breaching a contract of confidentiality is simply breaching a contract, unless there is evidence that the leaker obtained access in the first place by means of a false statement.
Forum members would owe each other no fiduciary obligations, so breach of the confidentiality provision would not be akin to disclosure of client confidences, proprietary information, or the like. (Perhaps there was an improper attempt to influence the judge: maybe the leaking lawyer is opposed to the posting lawyer in some other case before the judge. Absent evidence, however, I would not want to lean on such theories.) One lawyer mentioned that if the leaker leaked and then lied about it then discipline might be proper, which is true, but that is for the lie, not the leak.
A more interesting question is whether such forums should receive some sort of legal recognition, such that disclosure of conversations in them would amount to conduct calling into question a lawyer’s fitness to practice. I wonder whether the utility of such forums is high enough to justify strong protection on utilitarian grounds.
I could imagine such forums being good ways to share information so that members do not have to reinvent the wheel when they want to try something new. That might lower the cost (including time, etc.) of representation, and thus be both privately and socially beneficial, even if the forum were not limited to a specific form of litigation, such as Vioxx or some sort of case in which a steering committee of counsel might be formed.
If we think this is the case, then it would be important to provide forum members confidence that their communications would remain private, and creating a risk of discipline might be a good way to do that. One could even, as with the JDA, adopt a rule that disclosure of a confidence within the forum was not a waiver of confidentiality or privilege.
I’d be interested in any thoughts on how the norms of these things should evolve, and whether discipline has a role to play.