Legal Ethics Forum

Scope of Waiver in Patent Litigation

Just a quick note -- there's an interesting development percolating through the district courts on the scope of waiver of attorney client privilege and work product where a defendant accused of patent infringement relies upon advice of counsel as a defense to "willful infringement."  It's being blogged about at the fireofgenius, which you can find here.

Judicial Ethics and Statutory Interpretation

My colleague, Linda Jellum, and I recently finished a book on statutory interpretation. For well over a year, I was completely focused on the competing approaches -- textualism, purposivism, intentionalism, etc. -- and read various judicial views on the appropriateness of each approach.

One thing that really bothered me about a lot of what I read was the impugning of character by textualists of both legislators and judges.  For example, there's a quote that many judges will use about how legislative history involves "looking over the crowd and picking out your friends."  Likewise, there's a suggestion by textualists that anyone who relies on legislative history or purpose is somehow giving themselves room to interpret a statute as she sees fit.  Further, textualists will argue that legislatures "plant" legislative history in order to later bend judicial interpretation.

There's something about all that which bothers me:  it lacks respect, and impugns the character of fellow judges and legislators.  I have no doubt that one can cherry-pick statements from legislative history to support an interpretation, for example, but I also have no doubt that legislative history in the hands of a judge actually seeking "the meaning" of the text is a useful tool.  Likewise, I don't doubt that some legislators may try to "spin" proceedings to get a record that favors their view of the meaning of the text.  But I hardly think that all legislators do, and I certainly don't think that, even if some do, we should throw the baby out with the bath water as a result.

Anyone aware of any writings in this area or other authority?

9/11 Contingency Fee Brouhaha

Over at law.com there's an intersting story of a fee dispute involving a 9/11 widow. Boiled down, the lawyer is seeking his usual 1/3 fee, which some challenge because part of the payoff comes from the 9/11 fund, and because many plaintiff's lawyers reduced or eliminated their usual fees in dealing with 9/11 deaths. The former, they say, shows he knew he'd make money and so it wasn't contingent; the latter, that he's just a bad person. It's an interesting read.

I notice that it's being blogged about also over on MyShingle.

Hricik

Texas Ethics Committee Busy

The Professional Ethics Committee for the State Bar of Texas issued a slew of opinions that were just published in the August 2006 Texas Bar Journal.  Among them:

• Opinion 568, concluding that a lawyer could share a contingent fee with a suspended or disbarred lawyer so long as the agreement existed before the disbarment/suspension and the disbarred lawyer fully performed prior to then;
• Opinion 569, which analyzed the extent to which a lawyer could not be adverse to a party who was using a "law related business" of the lawyer (concluding it was not per se unethical to be adverse to a current customer).
• Opinion 570, which concluded that if a former client requests hand-written notes and the like from the file, the lawyer must generally provide them (with narrow exceptions).
• Opinion 571, which concluded that a prosecutor could include in a plea agreement a provision waiving post conviction appeals based upon prosecutorial misconduct or ineffective misconduct (with limitations), and that a defense lawyer could do so, too, so long as it was not an agreement prospectively limiting malpractice.
• Opinion 572, which, dramatically enough, says a lawyer can give privileged documents to a copying service without waiving privilege.