Legal Ethics Forum

Superman, but Not Super Lawyer

New Jersey has just issued an ethics opinion concluding that lawyers cannot use the phrases "super lawyer" or "best lawyer in America" or participate in these popular schemes.

I note, for those of you interested, that www.mediocrelawyer.com and www.averagelawyer.com are still available for use.

San Diego's Saga Continues

San Diego City Attorney Michael Aguirre has posted a report that is in essence a draft complaint against Vinson & Elkins.  It concludes that "the City should take appropriate legal action to recover the considerable damages proximately cause by Vinson & Elkins' breach of duties owed to the City of San Diego."

It is not clear to mee whether the City Attorney believes he has the power to file the complaint on his own initiative, or whether the report is a preliminary step in seeking approval for such a suit.  Stay tuned.

DM

Update: Question answered: The suit was filed this morning, after city council approval. Report here.

Patent Litigation: Privilege Waiver

A few years back, I wrote about the ethical issues that arise when firms combine forms of representation in the patent arena. E.g., what happens when a firm writes an opinion and then litigates the case involving that patent, or prosecutes and litigates a patent for a client. 
<p>One key risk I noted that arose when a law firm combined both an opinion on and the litigation of a patent was the risk of broad waiver of work product of trial counsel:  "T greatest risk that an opining-litigator creates is taht work product -- including, in some courts' views, even work product which was never received by the client from anyone at the lawyer's firm -- will be discoverable.")  A brand new case out of California has shown that risk to be real -- and raises even more significant questions about reliance on advice of counsel defenses.  </p>

<p>In <em>Informatica Corp. v. Bus. Objects Data Integration, Inc</em>., 2006 WL 2038461 (N.D. Cal. July 14, 2006), the district court, after lengthy briefing by the parties, concluded that it was the infringer's state of mind that mattered, and so held that it was irrelevant whether trial counsel was the same person who gave the opinion, or even whether trial counsel was in the same firm as opinion counsel.  Instead, the court reasoned:</p>

<blockquote>This Court, after weighing all the persuasive authority, concludes that the Federal Circuit has the final word in a patent case on the subject of the scope of waiver of attorney-client privilege and the work product protection for discovery relevant to a substantive issue after assertion of the advice-of-counsel defense. The court in Echostar makes it crystal clear that attorney-client communications on the subject of the opinion BODI relies on for its defense are subject to waiver, as well as documents, including work product, which reference these communications. Similarly, both pre- and post-filing work product is potentially relevant to the alleged infringer's intent where there is an allegation of continuing infringement and are therefore also subject to waiver. However, only work product which has either been communicated to the alleged infringer or refers to communications is relevant to intent and therefore subject to waiver by assertion of the advice-of-counsel defense.</p>

<p> <blockquote>This Court finds that, according to the analysis in Echostar, what is significant is the state of mind of BODI and not the affiliation of BODI's attorneys, and that privilege has been waived with respect to pertinent communications and work product of all counsel in this case. Attorney legal opinions, impressions and trial strategy unrelated to the opinion on which BODI relies may be redacted from documents to be produced to Informatica. The Federal Circuit in Echostar cautioned that the parties should protect such information. <br />
*8 Still, we must emphasize that such communications may contain work product of the second kind-legal analysis that was not communicated. In those situations, the parties should take special care to redact such information, and if necessary the district court may review such material in camera. <br />
In re EchoStar, 448 F.3d at1304.</p>

<p> While opinion counsel and trial counsel can be walled off from each other, the immurement is immaterial--what matters, according to the decision by the Federal Circuit in Echostar, is the state of mind of BODI.</p>

<p> For all the above reasons, Informatica's motion to compel further responses from BODI is granted. This Court finds that, by asserting advice of counsel as a defense to a charge of willful infringement of Informatica's patents, BODI waived privilege for both pre-and post-filing pertinent attorney-client communications and work product. Under the analysis in Echostar, it is immaterial whether BODI's opinion counsel and trial counsel are from the same firm, different firms or are even the same person. What matters is that:</p>

<p> 1. BODI relies on advice of counsel as a defense to Informatica's charge that it willfully infringed Informatica's patents;</p>

<p> 2. Therefore, BODI waives privilege for communications with counsel on the subject of the opinion or advice on which it relies as well as work product on that subject communicated to BODI or which refers to communications on that subject;</p>

<p> 3. Informatica alleges that BODI continues to infringe Informatica's patents;</p>

<p> 4. Therefore Informatica is entitled to information subject to waiver which BODI received even after Informatica filed its complaint;</p>

<p> 5. The categories of information which BODI must turn over to Informatica include (a) attorney-client communications with any counsel on the subject of the opinion or advice on which BODI relies; (b) work product communicated to BODI on that same subject; (c) work product which reflects any communication on that subject.</p>

<p> Attorney legal opinions, impressions and trial strategy unrelated to the opinion on which BODI relies may be redacted from documents to be produced to Informatica.</p>

<p> All responsive discovery which is being withheld as privileged for which privilege has been waived as discussed above shall be produced within twenty days of the e-filing of this order. BODI shall at the same time produce a privilege log for all other withheld documents, in compliance with the decision in In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir.1992), citing Dole v. Milonas, 889 F.2d 885, 888 n. 3, 890 (9th Cir.1989).</blockquote></p>

<p>Wow.</p>

"Almost all leakers are lawyers. That's the bottom line."

So says fomer New York Times editor Howell Raines.

Too Secret for the OPR?

This report is troubling.  Apparently the Justice Department's Office of Professional Responsibility attempted to look into the actions of lawyers who (apparently) authorized warantless surveillance of certain communications.  According to Attorney General Gonzalez, President Bush denied the OPR lawyers the security clearances necessary to pursue the investigation. 

The president presumably has ultimate authority on such clearances.  And, assuming this investigation has to do with PR issues, rather than violations of federal law (regarding which see In re Lindsey, D.C. Cir. 1998),  then as head of the branch of which Justice is a part, the president makes the calls of "the client" and could order OPR to stop.  (Opinions vary on the "who is the client" question, but I have always thought that the notion that either "the government" or "the public" is the client of DOJ laywers is unworkable.) 

The president does not have the authority to sanction violations of disciplinary rules, however, such as the rule against advising or assisting in unlawful conduct.  (Which, I am guessing, might have been what OPR had in mind.)  Perhaps the pardon power could be invoked to this end--I am no expert on that--but that is a different issue. 

I wonder about the logic behind such a decision.  Senator Specter pointed out that other DOJ lawyers have the needed clearances, and I would be surprised if there were a reason OPR lawyers could not be trusted, too.  Presumably they can be trusted with sensitive matters, given their internal investigative function.  I hope the decision is not based on the notion that because the administration decided to implement the program, therefore advising on it, or assisting in its implementation, was ethical.  That reasoning would be unsound.

It will be interesting to see how this issue plays out, when and if we learn the origins of this program.

DM

Judge bounced from Indian Land Rights Case

Judge Royce Lamberth has been removed as the presiding judge over an Indian land rights case.  Lamberth had been accused of being biased, and had authored an opinion that described the Interior Department this way:

"a dinosaur — the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the pathetic outpost of the indifference and anglocentrism we thought we had left behind."

An Inconvenient Truth

At the risk of moving this blog in a more political direction, I thought I would mention An Inconvenient Truth, a very convincing documentary about the imminent and severe consequences of global warming.  It's a must-see movie, despite the unnecessary attention it pays to Al Gore's life.

I thought the movie was worth mentioning on the blog for a couple of related reasons.  First, Al Gore makes a good case that addressing global warming is an ethical requirement.  With that point, it is very hard to disagree, but the ethical requirement is not directed at lawyers specifically.

Second, and on a related note, I began wondering what, if anything, lawyers can do to address the problem.  The legal profession has been at the forefront of addressing many social ills, and as this month's ABA Journal suggests, global warming is not an exception: lawyers have brought a number of creative lawsuits around the country to try to force changes to our nation's environmental policy.  But I couldn't help but think that, unlike some other social ills, this problem is not likely to be solved or even addressed in a significant way through litigation.   

Am I right about the limited role that litigation can play in this context?  If so, can the legal profession play some positive role in bringing about useful political and cultural changes?  If so, what specific ideas do people have? 

Malpractice Insurance Disclosure

Add Massachusetts to the list of about a dozen jurisdictions that now require lawyers to disclose to bar authorities whether they have malpractice insurance.  Given that studies show as many as 20% of lawyers practice without insurance, disclosure of this sort seems like a good idea.  In fact, there's a good argument to be made that lawyers should have to disclose any lack of insurance directly to prospective clients. 

Although the cost of insurance can be onerous for lawyers who have low incomes, a disclosure requirement is not a mandatory insurance requirement.  Lawyers can still decide not to purchase insurance, and if clients wish to hire these lawyer (at, I would assume, lower rates), they can do so.  But clients should make that decision with their eyes open as to the potential risks.

New York Times Editorial

Legal ethicists are busy discussing last week's New York Times editorial, which criticized the fees that highly respected NYU Law Professor Burt Neuborne has sought for his work on behalf of holocaust survivors.

You can find Professor Neuborne's response as well as a reply by Professor Monroe Freedman on the Wall Street Journal's Law Blog.

Google Search Ethics

Google offers all sorts of interesting information.  And as David Leonhardt points out in today's New York Times, the information is getting more fascinating all the time.

On a related note, when I first started blogging, I discovered that I can learn which site referred a reader to this blog.  For example, I can find out whether someone came here by clicking on a link on another blog or by way of a google search.  Most surprisingly, if you came here by way of a search engine, I can see what search terms you used to find us.  Although I can't see your identity, the revelation of your search terms can be quite interesting. 

On one occasion, I was amused to discover that someone came to legalethicsforum.com after typing "Andy Perlman" into google.  Again, I couldn't determine who conducted that search, but the use of my nickname "Andy" narrowed the list considerably.  One could imagine a set of terms that could make it possible to identify the particular person doing the searching.  For example, imagine a lawyer conducting a google search that contains the names of litigants as well as other specific, revealing facts.  It's possible that, if the search leads to a web site, the owner of that web site could discern the identity of the lawyer and even what the lawyer is thinking about a particular case.  Although the chances are still remote, changing technology is making Internet investigations somewhat more hazardous.

There is also a non-legal dimension to the ethics issue.  Did you all know that I could discover your search terms if you came here via a search engine?  If not, do you care?  Does this feel like an invasion of privacy, even though I don't know your identity?  Should we make clearer that we have access to this sort of information and that we look at it?  Or is the lack of privacy on the Internet so obvious to everyone that this issue is really a non-issue?