Legal Ethics Forum

PTO Rolls Out Part of its Revised Rules

I can't find them yet on the PTO's site, but here's one taste:

[A] registered patent agent is not authorized by his or her registration to practice before the Office to draw up a contract or to select contract forms for a client relating to a patent, such as an assignment or a license, if the state in which the agent resides or practices considers drafting contracts the practice of law. Assignments and licenses are the creation of state, not federal, statutory law. Although 35 U.S.C. 152, 202, 204 and 261 refer to assignment or licensure of patents or patent rights, assignments and licenses are forms of contracts, which are creatures of state, not federal law. Contracts are enforceable under state law. The authority to prepare contracts and provide advice regarding the terms to include in contracts is subject to the state law regarding who is authorized to practice law. In contrast, submission for recordation of assignments and licenses is a ministerial act that does not require legal training. It has been the long-standing position of the Office that a registered patent agent may prepare a patent assignment or license

Beautiful

Jeff Lipshaw on The Destruction of Lawyers by Douglas Litowitz.  Lipshaw is one of the best and most interesting writers currently working on ethics-related issues.  Check it out.

DM

Lawful advice or obstruction of justice?

Here's an interesting development out of Vermont.  A criminal defense lawyer apparently advised her client that if the victim didn't show at trial the matter would be dropped.  Was that ordinary, lawful legal advice or a subtle coordination of an obstruction of justice?  (Hat tip to Nuts & Boalts)  suppose that if we understood the full context we would conclude that it was lawful, but somewhat "close to the line."  Does the fact that police are occasionally taping calls between lawyers and nonclient witnesses "chill" the lawyer's zeal in a way that should bother us?  Or does the occasional taping incent lawyers to cut square corners?

Florida Tentatively Approves Testimonials on Web Pages

The story is here.  Apparently, testimonials still would be banned in other media.  Whether that distinction makes sense is debatable, but any step in the right direction is welcome.

DM

DOJ Terrorism Lawyers: Do Law and Politics Mix?

Here a USN&WR article on the Justice Department's new National Security Division.  The article looks at how law and politics mix in the volatile field of national security.  (By the way, any resemblance between me and the Charles Steele whom the article describes as "looking like an accountant" is not coincidental.)

FTC Moves on Pretexting

The FTC has asked a district court to enter an order concerning the HP pretexting scandal, as you can read here. 

Patent Litigation Conflicts

Very interesting district court decisions in the patent litigation context reaching opposite conclusions on teh question of whether a firm representing Client A in unrelated matters can represent a patent owner against party B where the patent owner, with other counsel, sues Client A. Rembrandt Technologies, LP v. Comcast Corp., 2007 U.S. Dist. LEXIS 9027 (E.D. Tex. Feb. 8, 2007).

This is a really sticky one, and the ability of firms to identify these conflicts, let alone avoid them, is one that I've spoken on. On the one hand, arguably the firm is helping to "make a case" against its own client by, for instance, avoiding prior art or achieving a broad claim interpretation that would implicate infringement by its own client. On the other hand, that sure sounds pretty attenuated to constitute direct adversity: where does that logic end? E.g., what if a firm is prosecuting a patent that justifies claims that will cover another client's products in an area the firm doesn't represent that other client in. Adverse? Why not?

In any event, if the case is correct, the patent owner plaintiff needs to be advised of the material limitations that could arise if a firm is in this box -- the firm may be unable to advocate for claim interpretations that may implicate infringement by another client, for instance.

I don't think we've heard the last word on this one.

French is the language of . . . . law?

The French had marketed their language as the "language of love," but here's news via Language Blog that the French feel that their mother tongue is uniquely suited to be the language of law, as it possesses an unmatched precision and rigor.

Kill Bill, Part II: An Unconstitutional Bill in New Jersey on Lawyer Solicitations

As I mentioned in a post last week, New York has adopted several new advertising rules, one of which restricts the ability of lawyers to contact accident victims or their families through the mail within thirty days of an accident.  I noted that the rule is being challenged on constitutional grounds and that lawyers will either have to distinguish the New York rule from the one that was upheld in Florida Bar v. Went For It or get the Supreme Court to hear the case and argue that Went For It was wrongly decided.

Despite my criticism of the New York rule and my own view that the rule both reflects bad public policy and should be unconstitutional, the rule is at least arguably constitutional in light of current precedents.  The same can't be said for a bill currently pending in New Jersey.  Here's a story about a bill there that would make it a crime for lawyers to identify potential clients from public court records and send those potential clients solicitation letters.  Violators face up to three years in prison.

You might be wondering: wasn't a nearly identical regulation struck down as unconstitutional in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988)?  Of course it was.  In fact, the article points out that the legislature has been advised that the proposed legislation runs counter to existing Supreme Court precedent.  So if you went to law school with the dream of winning a First Amendment case, you might soon have your chance in New Jersey!

Once again, the leakers are always lawyers

Here's a bombshell.  Breaking news stories say that the reporters who leaked grand jury testimony in the Barry Bonds case won't go to jail for refusing to name sources -- but only because the leaker, a lawyer, has admitted the deed.  Stay tuned  . . .