The International Trade Commission ("ITC") is an increasingly popular forum for patent and trademark litigation, with a record number of 70 unfair competition cases filed in 2011 alone. There are currently 73 cases pending in the ITC, and the statutory vehicle for this growing litigation is 19 U.S.C. § 1337, which prohibits "unfair methods of competition and unfair acts in the importation of articles. . . in the United States." (U.S. ITC, FY 2011 Press Release: Highlights: USITC Sees Record Number of Intellectual Property Infringement Cases Filed at http://1.usa.gov/Jicc9z U.S. ITC, Pending 337 Investigations, at http://1.usa.gov/Jicc9z OpenView (both visited Feb. 28, 2012).

Given the forum's growing popularity, attorneys representing commercial clients should have a basic understanding of this forum, its procedural particularities and its advantages. For patent and trademark holders faced with unfair competition from abroad, it may be a desirable alternative to federal district court. On the other side, businesses who import their products may find themselves brought before the ITC in a section 337 case, and they may turn to their general commercial litigators for advice about litigating in this forum.

Basic Overview of the ITC

After a complaint is filed with the ITC, the Commission decides whether to institute an investigation. The notice of the investigation is published in the Federal Register, which starts the clock ticking for the named respondents to file their response. The case will be assigned to one of six Administrative Law Judges ("ALJ") who will set his procedural schedule for case milestones.

Each ALJ also has his own Ground Rules, which supplement the procedural regulations set forth in 19 C.F.R. § 210. These regulations are similar, although by no means identical, to the Federal Rules of Civil Procedure. The ALJ also will issue a standard protective order governing confidential information. Attorneys for parties entering an appearance in an ITC case must agree to abide by the protective order, and confidential business information designations are treated very seriously.

The ITC's jurisdiction is directed at the imported goods at issue in the case, and is, therefore, in rem rather than in personam. Limited remedies are available in the ITC. Its primary mechanism of enforcement is the issuance of exclusion orders, either general or specific in nature. A general exclusion order bars any infringing products from entry into the United States, regardless of its source. A limited exclusion order bars importation of infringing products by a named respondent to the investigation. Exclusion orders are enforced by the U.S. Customs & Border Patrol. The ITC also can issue cease and desist orders enjoining the distribution or sale of imported, infringing products already in U.S. warehouses of an infringing party. Cease and desist orders are enforced by the ITC.

After trial, the ALJ issues an Initial Determination, which is then presented to the Commission. If the Commission declines to rule on the Initial Determination, it becomes final. The Commission also can issue its own ruling or can remand the case for further consideration. Appeal from the Commission is directly to the Federal Circuit.

Procedural Considerations

Litigation in the ITC is governed by ITC regulation and specific rules set forth by the ALJ. Because these regulations differ from the federal rules, they should be carefully reviewed. The ALJ's Ground Rules also can be very specific, and litigants should adhere closely to them. Beyond this different procedural framework, several other key differences from typical federal court IP cases are worth understanding at the outset.

• The Office of Unfair Import Investigations: The United States is a party to active ITC investigations, and its interests are represented by the Office of Unfair Import Investigations ("OUII"). Until mid-2011, each case brought before the ITC was automatically staffed with an OUII attorney. This is no longer true with new cases. Instead, the OUII staffs cases in which its specific expertise is required. Whether representing a complainant or a respondent in an ITC action, if your case is staffed with an OUII attorney, consider yourself lucky. The OUII brings a wealth of experience with the forum and can help you navigate its particularities.
• The Domestic Industry Requirement: To bring a case in the ITC, a complainant must demonstrate that "an industry in the United States, relating to the articles protected by the patent . . . exists or is in the process of being established." (19 U.S.C. § 1337(a)(2)). There are two prongs of the domestic industry requirement: the technical prong and the economic prong. (In the Matter of Certain Display Controllers and Products Containing Same, Inv. No. 337-TA-491/481, 2005 WL 996252, Commission Op. (Feb. 4, 2005)). To establish the technical prong (in a patent case), the complainant must demonstrate that at least one of its products practice the patent in suit. Id. To establish the economic prong, the complainant must show that it has made a significant investment in plant or equipment in the United States, a significant employment of U.S. labor or capital, or a substantial investment in exploitation of the patent, such as by engineering, research and development or licensing. (19 U.S.C. § 1337(a)(3)). The domestic industry requirement is in constant refinement as ALJs and the Commission issue new interpretative rulings that provide further guidance about the interplay of the factors and the level of proof necessary to show a domestic industry.
• Parallel Federal Court Proceedings: Where parallel proceedings exist before the ITC and a federal district court, a respondent in the ITC proceeding may seek a stay of the federal district court action until the determination of the ITC becomes final. (28 U.S.C. § 1659(a)). A stay under this statutory provision is mandatory. A final decision by the ITC may be persuasive authority to a federal district court; however, it is not binding. Thus, parties to parallel ITC and federal court litigation may potentially litigate the same intellectual property dispute twice. Practically, however, even if a federal court judge does not defer to the ITC's findings, the ITC proceeding likely will simplify or narrow the federal case. The parties already will have conducted relevant discovery, honed their positions, and filed expert reports.

Key Advantages of Litigating in the ITC

Should you counsel your client to file a complaint in the ITC rather than in federal court? There are a few commonly cited advantages to the ITC.

• Speed: For better or worse, your client will have an answer from the ITC in well under two years. Once a complaint is filed and an investigation initiated by the Commission, the ALJ will set a procedural schedule for the case. The typical target date for completion of the investigation is approximately 16-18 months. Last year, the average time from institution to a finding of violation or no violation was 13.7 months. (U.S. ITC, FY 2011 Press Release: Highlights: USITC Sees Record Number of Intellectual Property Infringement Cases Filed, at http://www.usitc.gov/press_room/documents/featured_news/337_timeframes_article.htm (visited Feb. 28, 2012)). Trial is typically scheduled within the same calendar year that the case is filed. The discovery period is usually around six months. By regulation, the time period for responding to discovery requests is 10 days, as is the time for answering most motions. (See, e.g., 19 C.F.R. §§ 210.15(c), 210.30(b)(2)).
• Experience: From the Commission members to the ALJs to the OUII staff, the ITC personnel have a wealth of experience with intellectual property matters. While the federal courts are certainly accustomed to intellectual property disputes, these legal challenges are the ITC's focus and specialty. For very complicated technology, complex patents, or multi-party disputes, this sophistication may be extremely beneficial. The ITC also offers free mediation sessions, staffed by experienced intellectual property mediators. If the parties choose to engage in mediation, dispute resolution also will be enhanced by the level of experience of the forum.
• Streamlining: The ITC has eliminated some of the inconveniences or uncertainties associated with litigation in the federal court system. For example, the ITC has nationwide service authority, facilitating service of subpoenas for testimony at depositions and trial. The evidence for trial is presented largely by written testimony submitted in advance, significantly streamlining the actual in-court hearing. The hearing itself is before an ALJ, eliminating the uncertainties associated with a jury trial. Especially for foreign litigants unaccustomed to U.S. trial procedure, this can be an advantage.

Practical Tips for Surviving an ITC Investigation

How should you advise a client considering an ITC complaint or finding itself brought before the ITC as a respondent? How should you prepare yourself? Below are some basic tips for surviving in this forum.

• Staff the case early, and stay organized. Depending on the amount of early discovery, an ITC case may begin deceptively slowly. Trust that it will speed up very soon. When it does, you will need an informed team staffed at all levels of experience. Assemble that team early and begin taking the organizational steps necessary to ensure that the team is communicating well and often.

• Make sure the client goes into ITC litigation with eyes wide open. It is not enough to simply tell the client that an ITC investigation will be finished in just over a year. For many clients, especially if your primary point of contact is a business person (rather than general counsel), this still will seem like a long time. Unless educated early, the client will not be able to anticipate and fully understand the rigors of litigation at this pace. Make sure you have the full commitment of all leadership who will be necessary for you to do your job. Make sure that any employees with relevant information are briefed about the tight deadlines for production of discovery. Give your client realistic estimates of costs. As the case gets moving, you will have some large bills, and you will thank yourself for preparing the client in advance.
• Take a proactive approach. A common pitfall for any busy litigator is to allow the procedural schedule to drive your case strategy, e.g., taking depositions the week before the discovery period ends, or thinking about summary judgment once the deadline begins approaching. This is simply not an option in the ITC. Treat the procedural schedule like it is sacrosanct, and try to stay several steps ahead of its deadlines. You also need to strategize early with your client about the desired result, keeping that in sharp focus as you tend to the details of litigation.
• Don't pay short shrift to the domestic industry requirement. Because the domestic industry is a threshold issue the complainant has to prove, it is a natural area for attack by respondents. As the complainant, make sure you support your complaint with robust evidence of your domestic industry and that you have gathered the supportive evidence on the front end. You will be asked to support your client's domestic industry in discovery, and early preparation will avoid scrambling for documentation on a tight timeframe. As a respondent, make sure you are asking for detailed support of the domestic industry. Look behind the company representative's statements to identify any potential vulnerabilities and weaknesses in documentation.
• Spend the time to find a strong expert. Expert witnesses are crucial to most intellectual property cases, and the ITC is no exception. However, Markman hearings are not automatic in the ITC, so you may find yourself making your expert arguments largely through reports and other paper filings. A strong expert will only make that process easier on you.
• Try to enjoy it. ITC investigations are rigorous and, at their busiest time, will take center stage in your life. But for intellectual property litigators, they can be a very rewarding and enriching career experience.

Eileen Hintz Rumfelt is an associate at Miller & Martin PLLC in the firm's Atlanta, Georgia, office. She focuses her practice on business litigation, including intellectual property litigation, and white collar crime. She is a member of the DRI Young laywers Steering Committee and currently serves as the Chair of the Young Lawyers Publication Subcommittee.

This article from Corporate Counsel provides great advice on how to protect your trade secrets while collaborating with third-parties.  As the article notes, you should consider:

A year ago we published an article in The Whisper titled Please Jurors, Check Your iPhone With The Bailiff (Vol. 7, Issue 2.) The article discussed the increasingly frequent problem of jurors' use of the Internet to do their own research and the use of social media sites such as Facebook and Twitter to communicate with each other and the world outside of the courtroom regarding the trials in which they serve. The temptation of a sitting juror to do her own research, or to discuss the case with other jurors or outsiders, has always been there; it is just that the advent of the digital age has made the ability to succumb to temptation so much easier. Clearly, courts have taken notice of the problem. Our article last year discussed the nature of the problem and what you, the lawyer, could do to learn of and handle the problem when it occurs. This article will in turn discuss what courts and legislatures around the country have done, and to suggest what more should be done to combat the problem at its source.

In the past year, there have been countless stories of jurors tweeting, posting to Facebook, blogging, or doing internet research during an ongoing trial. In a recent criminal case in California the jury was excused for a Mardsen hearing, which is when a defendant requests a new court-appointed attorney based upon a claim of ineffective assistance of counsel. During the hearing, which must be held outside the presence of the jurors, several jurors used a cell phone to Google the meaning of the hearing. The judge found out and was forced to declare a mistrial. Before releasing the jury, the judge reprimanded the jury and told them the consequences of their actions – that the State would have to pay for a new trial, and that the defendant, who may in fact be innocent, would have to spend the next few weeks in jail awaiting his new trial. Thus, the judge advised, the State incurred substantial funds and a man lost his liberty, all because the jurors spent less than five minutes on Google during a trial. Had the jury been better warned, with an explanation of potential risk, the jury may not have committed the misconduct.

Another example is that of Seth Rogovoy, a Massachusetts juror who was dismissed from a trial in February 2011 for his tweeting during his service. The tweets included a post which stated: "I am in contempt of court, de facto if not de jure" and "Sucks that you can't tweet from the jury box. What's the fun in that?" These tweets show that Mr. Rogovoy both understood that he was not allowed to make the posts and the potential consequence to himself, yet he did so anyway. After being dismissed by the judge, Mr. Rogovoy stated: "I never mentioned any of the people: the defendant, the witnesses. I never mentioned the court I was sitting in." In an interview later given to Bob Gardinier, as reported in the February 9, 2011 Albany Times-Union article Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using "Twitter," Mr. Rogovoy stated that, given the popularity of social media platforms like Twitter, judges will be forced to confront them in the courtroom. In that respect, Mr. Rogovoy is absolutely correct.

In order to prevent further juror misconduct through the use of social media, legislatures need to make it clear that it will not be tolerated, and courts need to instruct juries specifically on the impropriety of discussing or researching regarding an ongoing trial, why it is improper to discuss or research an ongoing trial, and the consequences to the juror if he or she fails to follow those instructions. This instruction should be made several times throughout the course of a trial, including when candidates are first called for jury duty, before voir dire, at the beginning of trial, before every recess, and before deliberations. The court must then monitor the jurors as best it can, and follow through with the threatened punishment. Most courts are now doing something about the social media, and in fact most of these suggestions are being followed by at least some jurisdictions. However, no jurisdiction has yet put them all together in a comprehensive effort to combat the social media problem. Without a strong message that juror misconduct is impermissible, the problem will only get worse.

More than half the state and federal courts now have jury instructions that at least make a passing mention of the internet when advising jurors or prospective jurors on the prohibition of performing outside research or discussing an ongoing case. This is a good first step, as many of the jurors who have made social media postings in the past have relayed that they did not understand this to be a "discussion" which was prohibited by the rules. For this reason, it is important that the instructions make more than a mere passing reference. Rather, the instructions should be as specific as possible, mentioning sites such as Facebook and Twitter (or whatever the prevalent form or social media of the day happens to be). At least then, the rule itself will be clear to the jurors.

Additionally, the most effective jury instruction not only gives the rule, but also explains the reasons behind the rule. While lawyers understand that some evidence is inadmissible for one reason or another and will not be known to the jury, many laypersons have a different view. They see lawyers and judges as keeping information from them that they need to know. Thus, not only are they curious, but many believe that they must know all the facts in order to be the best juror they can be. It is also important, as many model instructions now realize, to give the jury the reasons so that they understand that it is important that they follow the rules. Just as important is to advise the jury of the consequences to the courts and parties if they do not follow the rules, and the likelihood of a mistrial.

Often these instructions are repeated in one form or another several times throughout the trial. This, coupled with a recitation of the policy reasons underlying the instruction, will provide the jury with a constant reminder of the prohibition and sound basis for not falling to temptation. While it may seem repetitive, the ease with which a person in today's world can pull out their cell phone and record a status update which can jeopardize the entire trial necessitates the constant reminder as seen in the examples above.

In San Francisco County, in response to a jury pool of over 600 that was dismissed in 2009 following the realization that they had all researched a high-profile case prior to voir dire, the court takes a more aggressive approach. Prospective juries are given a questionnaire with a cover sheet that states in part:

You are ordered not to discuss this case with anyone; do not allow anyone to discuss the case with you. The only information you may tell anyone is that you are in a jury pool for a trial and the time requirements of that trial. You are also ordered not to read, listen to, or watch any news, Internet, or other media accounts of this case, past or present. You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP §1209(a)(10))

In addition to the instruction on prohibition, there must be consequences for a juror's willful disobedience of the rules. There are many individual instances where a judge has held a juror in contempt of court for violating the prohibition on research and discussion, and held hearings. This may need to be a more frequent and publicized occurrence to stem the growing problem. California recently passed a new law, AB 141, which went into effect on January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor. See Cal. Civ. Proc. Code § 1209(a)(6); Cal. Penal Code § 166(a)(6). In addition, the bill amends current law and requires that the jury be specifically instructed, before trial and before recesses, on the prohibition of research or dissemination of information, in all forms including electronic and wireless. See Cal. Civ. Proc. Code § 611; Cal. Penal Code § 1122. If anything, the bill does not go far enough. For instance, it could require offending jurors to pay for the consequences of their action, including the re-trial of the case if necessary.

While several judges in California and in other jurisdictions have taken it upon themselves to hold a juror in contempt for prohibited conduct, including the use of social media or performing internet research, the California Legislature's codification of this violation as not only civil contempt, but also a misdemeanor, is a step in the right direction. However, while California's new law requires the judge to advise juries regarding the prohibition on internet research and use of social media, it does not require the judge to instruct the jurors on the consequences of their actions if they fail to follow the rules. This too is important. While advising the jury of the reasons behind the rule appeals to their sense of civic duty – the carrot – advising the jury of the consequences of failing to adhere to the instruction lets the jury know that there will be real punishment – the stick. Both the carrot and the stick are necessary in order to have the best chance of strict adherence to the rules.

Finally, not only is it important that there be a law in place for handling a juror's violation and that the jury be advised of that law. The law must be enforced, possibly by the district attorneys as a misdemeanor rather than the judge as civil contempt. The instruction could also contain a request that the jurors report to the court if they know or suspect that one of their co-jurors may be violating any of these orders, which would in essence be self-enforcement.

Other courts have experimented with the prohibition of cell phones in the courthouse for everyone, or at least for jurors. Indiana, for instance, requires the bailiff to collect and store computers, cell phones and other electronic communications devices prior to deliberations. This rule was implemented after the Indiana Supreme Court considered a case wherein a juror took a cell phone call during deliberations. There, the Indiana Supreme Court wrote: "We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice….The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation." Henri v. Curto, 908 N.E.2d 196, 202-203 (Ind. 2009). Although helpful for times when the jurors are actually at the courthouse, this solution may not provide much in the way of curbing the practice of Internet research and social media discussions after hours, unless the jury is sequestered for the entire trial.

Our jury trial system is dependent on the jurors who are privy only to the evidence admissible in court, instructed on the law solely by the judge at the conclusion of the evidence and who have not been predisposed to outside opinions or discussions of the case before deliberation with their fellow jurors. While no solution is perfect, it is clear that courts, legislatures, and lawyers must do more to halt the increasing episodes of juror misconduct.

Tom D'Amato is a shareholder with Murphey, Pearson, Bradley & Feeney in San Francisco. He maintains an active litigation and trial practice in state and federal courts, and in administrative proceedings before regulatory and government agencies. Chief among his areas of practice are professional liability, business disputes, intellectual property, real estate, employment and personal injury. Mr. D'Amato also regularly represents clients in appellate courts.

Adam Koss is an associate with Murphey, Pearson, Bradley & Feeney in San Francisco. Mr. Koss focuses his practice on all phases of litigation, representing clients at mediation, arbitration and through to trial if required. Mr. Koss has an active practice defending professionals and their businesses, specifically in malpractice actions. Although he focuses predominantly on the defense of professionals and businesses, he also represents clients in a variety of other fields, including products liability, employment law, real estate, contract disputes and general negligence.

An internet search on the phrase "litigation funding" returns thousands of hits.  There are an incredible number of companies and persons "out there" who will buy equity shares in a lawsuit.  Hedge funds are actively seeking opportunities to invest in lawsuits.

Putting aside the concerns about champerty and maintenance, I wonder whether defense counsel are doing enough to work on this issue in trials.  Assuming that these websites really are engaged in the practice they describe, shouldn't defense counsel include questions related to investments in lawsuits, in their voir dire of the jury panel?

Obviously if potential jurors owned stock in the defendant company, they would be disqualified.  Equity ownership in a chose in action surely is relevant to counsel's evaluation of a prospective juror's impartiality.  Even if the prospective juror is not invested in this particular lawsuit, the question is important.  If the investment is in the litigation generally, or in other plaintiffs' cases within the same litigation, then a jury verdict in favor of the plaintiff would likely benefit the juror by increasing the settlement value of the other cases.  Even investments in unrelated personal injury litigation, the investments have the potential to prejudice the juror against the defense.  For instance, if the juror has investments in another personal injury litigation, returning a large verdict in the present case could benefit the investment by making the company defending against the juror's chose in action believe that trying cases in the particular venue was too dangerous to risk, and those claims should be settled.

Certainly, the existence and extent of investment by others in a lawsuit should be a worthy line of discovery to conduct in mass tort litigation.

Are we doing enough to stop this insanity?

This article was first posted at the author's website on May 8th, 2012: http://schachtmanlaw.com/litigation-funding/

Bad lawyers’ jokes aside, most of us do not encounter blatantly unethical and/or unprofessional attorneys in the course of our practice and are fortunately left wondering where the basis for these jokes resides.  But then there are reports like the one in the Atlanta Journal Constitution last week.

If you’re looking forward to your flight to South Florida as much as I am (and attending DRI's Young Lawyers seminar), you’ve probably already got your stack of magazines ready.  In flipping through US Weekly, I noticed the Snickers ad campaign “Help Us Bar Hunger.”  Snickers is donating the cash equivalent of 2.5 Million meals and an additional cash donation in an amount equal to 2 meals will be made for each 8 digit or 12 digit Bar Code Number entered on www.snickers.com until June 27th.  There is a ten bar maximum per day, so don’t get too carried away.    

I often find it curious that Law Day falls on May 1st.  Growing up, May 1st was always the day the news carried pictures of over the top parades in Red Square in Moscow where the USSR would display its missiles, goose stepping soldiers and mummified Politburo.  In hindsight, that seems quite antithetical to what I now celebrate on May 1st – the rule of law that sets our country apart from all others.  Being a lawyer should be and most often is a noble profession.  Incrementally, lawyers and judges shape the rules of conduct for society.  We protect the rights of individuals who are victims of crime.  We hold the government’s feet to the fire when it seeks to deprive a person of liberty.  We work to ensure that injured persons are fairly compensated when they prove their case to a jury of their peers.  We provide the vehicles for businesses to form, grow, prosper and provide jobs.  We protect assets at death so that heirs can enjoy the fruits of their loved ones’ hard work.  So on May 1, 2012, remember the great things lawyers and judges do for society and all of us, and not the punch lines of inane lawyer jokes.

Matt is a partner with Gallagher, Callahan & Gartrell in Concord, New Hampshire.  He is the DRI Immediate Past President.  He also sits on the Board of Directors for the NFJE and LCJ.

Not too long ago, I accepted a pro bono case in which I agreed to represent a woman who was seeking a domestic abuse order for protection.  I accepted the representation on a Friday and the hearing was set for the following Monday.  I was unable to reach her over the weekend, so I planned to meet her on the morning of the hearing.  When I arrived at the courthouse, I looked throughout the waiting area and saw a woman sitting alone in a conference room.  Guessing it might be my client, I knocked on the door and entered the room.  I asked her name and told her that I would be her lawyer.  She immediately burst into tears.  She then apologized and said that she thought I was going to tell her that I represented her abuser.  We prepared for the hearing and I was able to help her get the relief she and her children needed.  She thanked me for being her lawyer.  I walked out of the courthouse that morning with a renewed understanding of the impact that a lawyer can make on someone vulnerable, scared and poor.  She did not thank me because I was a particularly capable lawyer, or even because I was able to help her.  She thanked me because I showed up.   

This will be the first of two articles I will write on pro bono representation.  In this article, I will examine pro bono representation as a matter of professionalism.  I will leave the specific common ethical issues which arise in pro bono matters for the second article.

"Every lawyershall provide legal services to those unable to pay."

The unedited version of Model Rule 6.1 reminds lawyers of their "professional responsibility" to provide pro bono legal services.  See Model Rules of Prof'l Conduct R. 6.1.  The edits are simply my own wishful thinking, though most would not subscribe to the notion that lawyers should be forced  to perform work in which they are neither competent, committed, nor interested.  See Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono? Is That What We Want?, 7 Geo. J. Legal Ethics 1139 (1994). In most states, pro bono representation remains an aspiration or goal – which makes it a matter of professional self-awareness and behavior, rather than a matter of ethics.  See http://www.americanbar.org/groups/probono_public_service/policy/state_ethics_rules.html.

Lawyers don't seem to have a great deal of trouble with a conceptual understanding and acceptance of the responsibility of the profession to do free work for the poor.  The difficulty is translating that understanding into a specific undertaking of pro bono work in a lawyer's everyday practice.  We can rationalize our inaction in hundreds of ways.  We have commitments to our clients, our practices, our families and our own individual wants and needs.  The Comments to Model Rule 6.1 tell us that "[e]very lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer."  Model Rules of Prof'l Conduct 6.1 cmt. 1.   We are all each other's peers in the estimation of this rule, no matter how famous or how busy.  We likely exaggerate the impact that taking on apro bono case will have on any of our commitments and we likely underestimate the impact that taking a pro bono case will have on the pro bono client, the way we think about our role in the profession and about ourselves.  

As lawyers, we are in a rather unique position because we have an exclusive license to do what we do.  Some other do-gooder can't just decide one day that she is going to represent an indigent client.  Accordingly, the field of potential representation is limited to "us."  Unfortunately, the number of "us" who do pro bono work is not great, so the field is further limited.  See Deborah L. Rhode, Cultures of Commitment: Pro Bono For Lawyers and Law Students, 67 Fordham L. Rev. 2415 (1999).  Although there are public defenders, poverty law centers, law students in clinics and others who partially fulfill the legal representation needs of the poor, the profession is left to fill the gap.  We aspire to do pro bono work, not because it is the right thing to do, or because it makes us feel good, or because the need is so great, but because it is part of the calling of our profession.  It is our job.  We have been given a unique and exclusive license to provide legal advice and representation.  No one else can do what we do.  Therefore, it is up to "us" to figure out how to solve the problem of the unrepresented poor. 

Part of the pro bono professionalism struggle has to do with getting a grasp on several  things which will help us recognize our obligation and our place in it. 

After considering the professional exclusivity that I just discussed, you must read Model Rule 6.1, or your state's corollary rule and reflect on the categories of representation which fulfill the aspirational goals articulated in the rule.  The breadth of the Model Rule was likely designed to cast the widest possible net.  It is unlikely that a lawyer could finish reading the rule and not be heartened by the wealth of opportunities which satisfy it. You can provide legal services to persons of limited means.  Model Rule 6.1(a)(1).  You can provide legal services to charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.  Model Rule 6.1(a)(2).   Your skill set, interest or expertise are reflected in the rule somewhere.

Next, you must gain an appreciation of the scope of the problem.  You can learn this empirically, by reviewing the annual reports of the courts in your state, or anecdotally, by talking to a judge about the need for representation that she sees every day in her courtroom.  Statistics and stories provide the window through which you can see your opportunity.  Taking yourself from understanding to action can only occur if you take a professional interest in the need for your help and gain an awareness of the critical nature of the need.

Once  you have understood the professional obligations and the need, you must use your lawyerly creativity and imagination to begin thinking of the theoretical ways you could meet your professional obligation to do pro bono work. The sky (capped only by the cloudy ceiling of your competency) is the limit.  You can be immediately competent to do what you do every day for free.  On the other hand, you can learn competency to do something that you have not done since law school, or train yourself to be competent to meet your lost calling.  If you are a trial lawyer, learn to advise a non-profit board.  If you are a medical malpractice lawyer, learn immigration law.  If you are an insurance coverage lawyer, represent kids in juvenile proceedings.   Sometimes, we forget about the breadth of our education and how it has prepared us to do many things.  We were trained to do so much in law school and like riding a bike, it often comes back to us as we reckon with the substantive and procedural issues in pro bono practice.You were trained to be a quick study and have the ability to work with the facts you have, within the applicable law.  You were also trained to dig deeply into the substance when time permits.  There are countless local and national organizations which would be happy to provide you with the training you need to begin undertaking pro bono representation.   Your local bar association undoubtedly has a section or committee which promotes pro bono representation and connects lawyers with organizations which need their help and will train you to attain competence to meet the needs of its clients.  A few of these are listed by DRI at https://www.dri.org/About/Cares, though your local bar association remains the most helpful resource.  Oftentimes, the same pro bono group which trains you will provide you with cases.  Unlike your daily practice, you will never, ever, struggle to find clients.

When you have selected your interest area, and developed competency (at least through training, because the experience will come),it is time to step over the threshold.  There is nothing particularly transformative about the process of getting to the point of pro bonorepresentation.  The transformation will only take place when you have done the work.  As a professional, you will need to treat the case as you would any other representation  for which you are paid.  You will need to run a conflicts check, you will need to prepare and discuss a letter of representation with your client and clearly outline the scope of your representation.  You will need to open up a file, investigate the case, meet with your client, collect evidence, and prepare for the trial or hearing (or prepare the will, or the articles of incorporation, or whatever it is that you have been retained to do).   Just as you would not handle a client who paid you $150 per hour differently than one who paid you $350 per hour, the client who pays nothing is entitled to nothing but your focused attention and most outstanding representation.    In fact, the financial, emotional and psychological vulnerability of your client will likely lead you to work that much harder to achieve your client's goals.

Professionals see pro bono representation as an entitlement of their position as lawyers, rather than a burdensome obligation borne by guilt.  Professionals don't require a rule or regulation to understand what it means to be a lawyer.  Professionals understand that pro bono is an integral part of being a lawyer.  As Justice Anthony Kennedy observed:

Lawyers, like all those who practice a profession, have obligations to their calling which exceed their obligations to the State. Lawyers also have obligations by virtue of their special status as officers of the court. Accepting a court's request to represent the indigent is one of those  traditional obligations. Our judgment here does not suggest otherwise. To the contrary, it is  precisely because our duties go beyond what the law demands that ours remains a noble  profession.

Read the rule.  Turn an aspiration into action.  Get trained.  Get a client.  Show up.

Thomas A. Gilligan, Jr., is a shareholder with Murnane Brandt in St. Paul, Minnesota. Mr. Gilligan's trial and appellate practice focuses on product liability, employment and personal injury litigation in Minnesota and Wisconsin. Mr. Gilligan serves as publications chair for DRI's Lawyers' Professionalism and Ethics Committee and is a former investigator for the Ramsey County District Ethics Committee.

The deadline for DRI’s annual Law Student Diversity Scholarship, open to incoming second- and third-year African American, Hispanic, Asian and Native American students, is Friday, April 27. Please remind your students to send in their applications for review by this date. This is a fantastic opportunity! Two scholarships in the amount of $10,000 each will be awarded to applicants who best meet the following criteria:

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  • Demonstrated academic excellence
• Service to the profession
• Service to the community
• Service to the cause of diversity

Visit the DRI website for full details on eligibility and to download the scholarship application.

Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.