In his recent article in City-Journal, Northwestern University Law Professor John McGinnis hypothesizes that recent and impressive technological advances will have an increasingly disruptive impact on the legal profession.  McGinnis notes that “law schools are in crisis,” “solo practitioners have been hurting for a decade,” “attorney job growth has been flat,” and “the going rate for associates, even at the best firms, has stagnated since 2007.”  Though the economic downturn has certainly played a part in the current state of the legal industry, the advances in information technology will be the determining factor in the future.  McGinnis predicts that “five key areas of law now face encroachment by this machine intelligence.”  

The first, e-discovery, is already well on its way to changing (and limiting) opportunities for some lawyers.  Most notably, junior litigation associates used to be profit centers for big firms by spending late nights and weekends on hefty document review projects.  With predictive coding, the speed and accuracy of this work is improved and the need for bodies in the office is decreasing.  

The second key area is legal research, which as McGinnis notes, has largely “depended on typing in the right specific keywords.”  As computer technology improves, machine intelligence will be able to recognize concepts rather than just words with the result being more efficient research limiting lawyers’ “traditionally enjoyed leverage over the laity.”

McGinnis’ third area, legal forms, is already replacing many of the tasks traditionally performed by solo practitioners and small firms: trusts, estates, basic corporate documents, etc.  Businesses like Legal Zoom and Kiiac specialize in drafting estate documents and contracts, while “Nevada’s secretary of state has pioneered online registration for small businesses, which can comply with regulations by following the steps of simple computer programs.”  

McGinnis also predicts computers may one-day play a stronger role in a fourth traditional lawyer task: drafting briefs and memos in simple litigation.  Though McGinnis notes “an experienced lawyer could easily shape a computer generated draft into a more polished product” there’s no denying that “once programs start being useful, they get more effective over time.”  Ultimately, computers may be playing the role of entry-level associate in some cases.  

Finally, McGinnis hypothesizes that computers will bring “moneyball” to law.  The term “moneyball”, made famous by Michael Lewis’ bestselling book about the change in baseball statistics and analytics, generally refers to a method of predicting results based on raw data and statistics.  For lawyers, the use of “moneyball” in the law means that computers predict a client’s chance of success in litigation, as opposed to a lawyer’s hunch or gut feeling. To some extent, legal moneyball is already in place.  Legal support companies already track numerous statistics about potential jurors and past jury verdicts in forums across the country. The question is, how much progress can be made using legal moneyball?

Right or wrong, McGinnis raises some interesting points about the changing role of computers and technology in the law.  In a world where lawyers are constantly competing with each other for the next case and the next deal, perhaps the most successful lawyers will be those that are prepared to compete with and for the best legal technology.  Indeed, as MIT’s Eric Brynjolfsson and Andrew McAfee have advised in their recent book Race Against the Machine, “The key to winning the race is not to compete against machines, but to compete with machines.”

You can read the entirety of McGinnis’ article here. 

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Ethics in the Virtual Office

Posted on May 23, 2013 05:48 by Marc Zimet

Attorneys who practice out of the “virtual” office are becoming more common. Perhaps it is the overhead costs deterring some from shelling out for a physical address, or the ease with which one can practice entirely online, or maybe a bit of both. Whatever the reason, more and more attorneys, especially new bar admitees, are opting for the virtual office. But can an attorney practice entirely online, maintaining the client’s file online, and communicating only with the client via e-mail, all through a secure third -party vendor (i.e. cloud computing) and still be in compliance with his or her ethical obligations? This was the recent issue put before the California State Bar Standing Committee on Professional Responsibility and Conduct in Formal Opinion no. 2012-184.

The issues decided in this opinion concerned an attorney who, through the firm’s website, assigned a password to each client who could then access their individual file online and communicate with the attorney via e-mail through the portal. The attorney may never meet in person with the client, or even communicate with them via telephone. All communications were to occur solely through the secure website.

In its opinion, the Committee found that while the Rules of Professional Conduct and the Business and Professions Code do not directly place any additional or different requirements on attorneys operating out of a virtual office, specific issues are implicated in the virtual setting that may give rise to further due diligence requirements.

For example, an attorney has a duty to maintain her clients’ confidences. (Bus. & Prof. Code §6068(e)(1); Rule 3-100(A).) An attorney utilizing technology in any law practice has a duty to ensure that the duty to maintain her clients’ confidences is met, and all communications occurring via e-mail are secure. However, in the case of the virtual office, where all files are also stored, the attorney has an additional duty to ensure that the third-party vendor securing the site, information, and communications has employed policies and procedures to protect the data that at a minimum equal what the attorney would do on her own to comply with the rule. While an attorney must not be an expert in the technological field to make this determination, an attorney should at least know the basics in analyzing the vendors. Factors to be considered in assessing the vendor include the credentials of the vendor, data security, transmission of information in the cloud, ability to supervise vendor, and terms of service with the vendor. If an attorney is unable to make this assessment herself, she is required to seek an expert opinion.

Another duty that may be implicated in this situation is the duty to provide competent representation, which relies heavily upon the attorney’s ability to communicate with her clients. (Rule 3-500; see also Calvert v. State Bar (1991) 54 Cal.3d 765, 782 (“Adequate communication with clients is an integral part of competent professional performance as an attorney.”) In conducting a legal practice entirely through the virtual office, special considerations must be taken to ensure the attorney is communicating effectively with the client in order to comply with this ethical obligation. For example, from the first interview, the attorney must ensure that she takes in sufficient information from the prospective client to determine if she can provide the legal services in question. The attorney then must ensure that she communicates with the client about the case status and issues, and that the client understands the legal concepts involved sufficiently to make informed decisions. When communicating solely through e-mail, it can be difficult for an attorney to discern whether the client completely understands the issues, whereas in person the attorney would have the ability to read verbal and nonverbal clues.

Once an attorney begins representation of the client, she must keep the client reasonably informed. (Bus. & Prof. Code §6068(m) & (n); rule 3-500.) If an attorney’s communications with a client include merely posting information on a client’s portal, the attorney must take steps to ensure that the client is in fact receiving that information in a timely manner.  It may be wise for the attorney to speak with the client regarding the importance of regularly logging into the portal to check for attorney communications. However, if the attorney does not believe the client is doing this regularly and therefore not timely receiving communications, it may be necessary to communicate with the client by other means to ensure this ethical obligation is complied with.

It should always be remembered that prior to beginning this sort of virtual representation, it must be determined if the client has sufficient knowledge of technology to check his or her portal, and navigate the site for case information and communications. If this is not the case, then the attorney may not be able to provide competent representation in this environment and all representation in the virtual office must cease immediately. The attorney would thereafter be free to represent the client in a non-virtual setting.

While operating a virtual office may provide many attorneys with a more economical and efficient means of connecting with their clients and providing legal services, it also presents ethical issues that are not encountered in a traditional law office setting. Attorneys choosing to go this route must ensure that they are complying with the same rules of professional conduct, however the means of compliance may require some additional due diligence.

This blog was originally posted on Jampol Zimet's Insurance Defense Blog. Click here to see the original post. 


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Nevada Gambles on Online Poker

Posted on March 6, 2013 02:12 by Joseph M. Hanna

On February 21, 2013, the Nevada State Legislature passed Assembly Bill 114, a measure which allows state Governor Brian Sandoval to enter into contracts with other states permitting individuals to gamble in online poker games across state lines.

In theory, the law was passed to protect consumers and reduce the amount of illegal online gambling.  In pertinent part, the bill states: “A comprehensive regulatory structure, coupled with strict licensing standards, will ensure the protection of consumers, including minors and vulnerable persons, prevent fraud, guard against underage and problem gambling, avoid unauthorized use by persons located in jurisdictions that do not authorize interactive gaming and aid in law enforcement efforts.”  Later, it reads, “The state of Nevada leads the nation in gaming regulation and enforcement, such that the state … is uniquely positioned to develop an effective and comprehensive regulatory structure related to interactive gaming.”

The law effectively acts as an end-around certain laws prohibiting the practice – previously, the Nevada Gaming Commission was not allowed to issues licenses for operating online poker facilities without some form of permission by the federal government (i.e. through explicit legislation allowing the practice or by seeking approval from the U.S. Department of Justice).  Now, the commission can not only issue these licenses, but is given the authority to regulate and vary license renewal rates.  A.G. Burnett, chairman of the Nevada Gaming Board, believes that the move could be very profitable for the state – he estimates that a global market for licensing online poker games could amount to tens of billions of dollars.

As originally published at www.sportslawinsider.com

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The Cloud with a Silver Lining?

Posted on February 5, 2013 02:48 by Chad Godwin

The "cloud." It’s a term all of us have become familiar with, but also one that many of us give little thought to within the context of our law practices. That, however, is likely to change, as an increasing number of firms are going to be faced with the choice of keeping their data and/or applications local, moving them offsite, moving them to a true data cloud, or employing a combination of on and offsite strategies. What are the cost benefits associated with these choices? What are the security issues that must be addressed? These are questions that IT managers are facing on an ever increasing basis. 


The American Bar Association recently addressed this issue in the ABA Journal. The Journal referred to a survey of 438 lawyers, paralegals and technology staffers, who noted that the bar currently seems to be split down the middle, with 46% of respondents opposing a move to the cloud, 45% favoring such a move and 9% providing no opinion. Moreover, the study suggests that small and mid-size firms appear far more willing to make the move than large firms, perhaps due to the investment in locally-based IT and equipment large firms are presumed to be invested in. Somewhat surprisingly, 47% of lawyers favored the move, while only 40% opposed it. This suggests that one of the primary hurdles associated with such a move, data security, is being adequately addressed. Finally, the study noted that 81% of respondents expect the cloud overtake on-site computing within the next 10 years.

The fact that so many respondents view the move as imminent suggests that the legal industry’s primary concerns are being addressed, and that costs associated with moving to the cloud are likely to continue decreasing while security becomes less of a concern. If there’s one constant with technology, it is that it grows cheaper and more accessible with time. As cloud access continues down that path, one has to believe that it will become an increasingly attractive alternative to on-site data and program management.

If you find this content interesting, or are involved in the technological aspects of practicing law, the DRI Technology Committee would like to urge you to join.  There are currently leadership positions available within the committee, along with plenty of opportunities to obtain exposure for your practice.  If you are interested in joining the committee and getting involved, please contact the me at cgodwin@carrallison.com or our Vice Chair, Joe Cohen at JCohen@porterhedges.com for more information on these opportunities.
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Misunderstood heroes. Space travel. Alien worlds. Humanoids. Greed. Imperialism. Violence. Exploitation. Intercultural war. Redemption. And Copyright Infringement?

Everyone’s seen the movie Avatar. How many people have read the book Bats and Butterflies? How many people have even heard of it? The author of Bats and Butterflies alleges that James Cameron’s Avatar is a rip-off.

Background
Elijah Schkeiban, author of the book Bats and Butterfliesfiled a lawsuit against Cameron, author, director, and co-producer of Avatar, and Lightstorm Entertainment, Inc., Twentieth Century Fox Film Corporation, and Dune Entertainment LP.  Schkeiban alleges in his lawsuit that he created the Bats and Butterflies “franchise of products” in 1988 based on his script and novel of the same name.  He alleges that he registered the copyrights for the script and novel in 2000 and 2001. 

Schkeiban alleges that in 2005 he started shopping the script to various people in Hollywood, including an actor named Billy Zane. He alleges that Cameron’s Avatar copied Bats and Butterflies, and that the two stories are “substantially similar” in plot, sequence of events, characters, themes, moods, setting, and pace.  He alleges that Cameron and the other defendants therefore infringe his copyrights.  You can’t watch the movie Bats and Butterflies, to decide for yourself whether Schkeiban’s claims have merit, because the movie hasn’t been made.  But you could read the novel.

Anyway, the court dismissed his Complaint, noting (correctly) that the Complaint was missing an essential element of a copyright infringement claim:  it made no allegation whatsoever that Schkeiban gave or showed his script to Cameron or the other defendants, or that they had access to it. This was a fatal omission. 

Schkeiban then filed an “Amended” Complaint, in which he now alleged that when he gave his script to Zane in 2005, he asked Zane to give a copy of it to Cameron, and that Zane later told him that he had done so.  Again, the court dismissed the Amended Complaint.  The court noted that Schkeiban’s new allegation only alleged that Zane allegedly told Schkeiban that he (Zane) had given the script to Cameron.  This allegation simply wasn’t enough, the court said, to establish that Cameron actually saw the script. 

Schkeiban responded by filing a Second “Amended” Complaint.  In this third pleading, Schkeiban pointed out that Zane is an actor who had been in Cameron’s previous film, Titanic, and therefore was close to Cameron.  Schkeiban further alleged that he had had a telephone call with Zane in 2005 in which Zane assured him that he had given the Bats and Butterflies script to Cameron.  Otherwise, there were no changes from the previous Complaints.

Copyright Law Protects the Expression of Ideas
Before turning to the court’s final decision, a little about copyright law.  Many people who don’t work in intellectual property don’t realize that copyright law cannot and does not protect ideas.  It protects only the actual expression of those ideas. 

  • In literary works, such as novels or scripts, you can’t copyright what are called “scenes a faire,” meaning standard plots, scenes, characters, or themes. 
  • You can’t copyright plots, such as “boy-meets-girl, boy-breaks-up-with-girl, boy-reunites-with-girl, and boy-and-girl-live-happily-ever-after.” 
  • You can’t copyright scenes, such as “boy-meets-girl-in-a-dimly-lit-bar.” 
  • You can’t copyright characters, such as heroes, villains, victims, etc.
  • And you can’t copyright themes, such as “misunderstood and conflicted soldier in invading culture falls in love with a member of the invaded culture, switches allegiance, and leads the invaded culture in repelling his own culture.  This persistent theme in human literature is nicely explored in the Wikipedia entry for the film Avatar.   (Consider:  the novel Tarzan and the film Dances With Wolves.) 
In order for a court to find copyright infringement in a script or novel, there has to be almost exact copying of the actual mode of expression – i.e., the words and sentences.  Therefore, Schkeiban would have to show not only that Cameron saw or had access to his script, but also that Cameron literally or almost literally copied from it.

The Court’s Decision – Avatar Not “Substantially Similar” to Bats and Butterflies
The court again dismissed Schkeiban’s Second Amended Complaint, pointing out that this was Schkeiban’s third attempt to make out a copyright infringement claim.  The court noted that to prove copyright infringement, a claimant must prove: 

1. ownership of a valid copyright, and
2. copying by the alleged infringer (Cameron) of elements of the infringed work (Bats and Butterflies) that are original to that work. 

In turn, copying can be proven by showing that: 
1. the defendant had access to the infringed work, and
2. that the works at issue are “substantially similar.” 

The court noted that, even on his third attempt, Schkeiban’s effort to show that Cameron had access to Bats and Butterflies was vague.  But, even assuming Cameron had access, the court found that the elements of Bats and Butterflies and Avatar are not “substantially similar.” Bats and Butterflies is a fantasy work that involves a bullied human teenager, Joshua, who is magically transported to a planet and finds a war between bats and butterflies.  Joshua helps the butterflies defeat the bats and helps a caterpillar princess mature into a queen butterfly.  As we all probably know, Avatar involves a disabled war veteran/mercenary soldier who flies to a planet; through cloning technology is transformed into one of the native beings on that planet in order to spy on them; and eventually sides with the natives and helps them defeat the invading humans – his own people. 

Although both works involve humans who go to a distant planet and become involved in a war between two cultures there, the similarities end there, according to the court.  Schkeiban argued that his script and Cameron’s film were similar because both involved ideas of alien lands, deaths of family members, and battles between groups with competing interests.  The court found that the plots and sequences of events between the two stores are substantially different and that any similarities are merely general ideas, which cannot be copyrighted.  Similarities between Schkeiban’s hero, a bullied teenager, and Cameron’s hero, a paraplegic war veteran, are not copyrightable.  Any random similarities of plot scattered between the two stories are “scenes a faire.”  Both stories arguably involve themes of racism, genocide, imperialism, and environmentalism, but, again, themes cannot be copyrighted.  As a result, the court found that, after three attempts, Schkeiban could not prove copyright infringement, and dismissed his claim with finality (“with prejudice”).

Another note about copyright law:  In contrast to the standard “American Rule,” whereby each party in litigation pays its own attorneys’ fees, the copyright statute allows the prevailing party (here, Cameron, et al.) to recover its fees. After persuading the lower court to dismiss Schkeiban’s Complaint, the defendants moved for recovery of their attorneys’ fees.  The court denied their motion.

The court docket reveals that Mr. Schkeiban has filed an appeal to the U.S. Court of Appeals for the Ninth Circuit.   Bats in the Belfry?

Stay tuned.

*This article was originally posted to "The IP Stone" by Walter Judge on December 19, 2012. Read the original post here


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New Technology = New Concerns For Hotels

Posted on December 5, 2012 04:20 by Philip M. Gulisano

Recently Forbes.com published an article exposing a security flaw in common keycard hotel room locks that permitted hackers with a digital device to effortlessly trigger the opening of the locking mechanisms. This, of course, would allow the hacker to have access to the personal belongings inside the room or, worse yet, unwanted access to the guests themselves.  The “security vulnerability” was said to be present in keycard locks built by a particular lock company and specifically in a model of lock that appears in at least four million hotel rooms worldwide. There are believed to be a number of “patches” to fix the issue, which vary in cost.

While the lock manufacturer in such an instance may certainly be responsible if its locks do not perform as intended, generally, a property owner or lessor, such as a hotel, has a duty to keep its guests safe from known or reasonably anticipated dangers. This begs the question of what is a hotel’s duty or obligation to its guests when it knows, or should know, that the locks present on the hotel room doors, which guests would reasonably anticipate are capable of keeping people out, are highly vulnerable to hackers.
 
To start, any hotel that has direct knowledge that its room door locking mechanisms, whichever they are, do not perform as intended and as relied upon by its guests, would be wise to immediately remedy the problem to ensure the safety and comfort of the guests.  One could easily imagine the horrific publicity and liability if it was discovered that guests were losing property, being assaulted or otherwise attacked in the confines of their presumptively safe hotel room if the hotel knew that the locks were easily by-passed. 
 
Often times, with new technology comes uncertainty with how it will perform and whether there will be “bugs” in the system.  However, almost by definition technology has faults that its possessors must investigate, anticipate and seek to minimize.  It would be wise for any hotel to understand what issues and/or risks exist with the technology it uses and develop a plan to minimize those risks and ensure its guests have a safe stay and come back again.

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Categories: Hospitality Law | Privacy | Retail | Technology

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Rent to Own Computers and the FTC

Posted on October 12, 2012 02:19 by Chad Godwin

Wired Magazine recently reported that seven rent-to-own companies and a software manufacturer are settling charges with the Federal Trade Commission.  The charges claimed that computers rented from the rent-to-own companies used pre-installed spyware to obtain a host of data from the users.  The settlement only requires the companies to stop using the spyware, known as “Detective Mode,” which has been installed on as many as 420,000 rental computers.  In addition to secretly turning on a computer’s webcam, the software was capable of logging keystrokes, and  taking screen shots of a user’s activity.  The software then transmitted the secretly gathered information to the manufacturer, DesignerWare, who forwarded the material on to the rent-to-own company, all without the user’s knowledge.  The settlement still allows the rent-to-own companies to employ the software so long as they notify the renters.  Further, the FTC lacks criminal jurisdiction, so the companies have yet to face any criminal charges.  However, the FTC acknowledged that criminal activity appears to have occurred in a nod to the potential for ongoing investigations. 

The computers at issue collected everything from addresses, photos and video of often compromising situations, to phone numbers, email and social media passwords and financial logins, begging the question of what type and how much information a user should feel comfortable entering on a computer they don’t own.  In the case of someone renting a computer, it can be easy to see how a user operates under the impression that they have unfettered access to the machine for the term of the rental.  Nonetheless, there are measures that such parties can take in an effort to secure their privacy.  There are free firewall programs, such as Zone Alarm and Windows Firewall, that allow users to designate and monitor every program that accesses and/or attempts to access outbound internet connections.  Had the renters correctly configured and employed such a program, they would have known that a program, by whatever name, was attempting to send information from the subject computer.  In the event that renters were unable to install or configure (in the case of pre-installed Windows Firewall) such programs, it should serve as a red flag to carefully consider the manner in which to employ a rental or loaner computer. 

 

 

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RETAILERS WHO “SPY” BEWARE

Posted on September 27, 2012 02:22 by Philip M. Gulisano

Retailers providing consumers with electronics on a rent-to-own basis face many challenges in ensuring that they are paid for the electronics that they rent.  In particular, computers are small and easy to hide if a retailer seeks to repossess the computer from a non-paying customer.  The temptation to use software that allows the retailer to view where the computer is located and what the renter is doing with the computer is strong, however, the consequences of doing so can be high.  Obtaining information from the computer without the renter’s knowledge or consent not only erodes the renter’s trust and confidence in the retailer, but also opens the retailer up to possible civil and criminal liability.

The recent settlement of charges brought against several rent-to-own companies by the Federal Trade Commission highlights that using software that can log onto a computer, turn on the webcam to take photographs, take screen shots of the computer user’s activities on the computer, and log the keystrokes of the computer user, comes with a price.   According to one news report, civil penalties are not a part of the settlement because civil penalties cannot be imposed for a first violation of the Federal Trade Commission Act.  However, the companies are required to cease using their “spy tools” and, presumably in the future, advise renters of the use of tracking software.  

Further, aside from possible federal action and the costs associated with defending such actions, retailers need to consider possible civil and criminal liability under state laws.  While laws vary from state to state, several states recognize a tort for invasion of privacy, such as intrusion upon seclusion.  Capturing images of a person in a private setting, particularly while engaged in private acts, without the person’s knowledge or consent, may subject a retailer to a civil action.   Even in states that do not recognize a tort for invasion of privacy, under certain circumstances, a person who secretly videotapes an individual engaged in private actions may be liable for the tort of intentional infliction of emotional distress.  Remember that if you use a webcam to take pictures of the area surrounding the computer, you may be capturing images of individuals other than the renters.  Criminal liability is also arguably possible if the state has a statute prohibiting unlawful surveillance and, in some states, there is the possibility, in certain situations, of criminal liability for installing and using key stroke logging software to collect personal information.

If you decide that despite the risks, it is necessary to install and use tracking software, be sure to advise renters of the presence of the software, its uses, and your policy on its use.  The best practice would be to obtain an acknowledgement from the renter, in writing, that the renter was so advised.

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Ethics 20/20: The Impact of Technology

Posted on August 30, 2012 03:19 by J. Logan Murphy

Every day, we see the impact of technology on the practice of law. Blogs, social networking, electronically stored information, and other legal resources create enormous economies and unprecedented depth in our field. But with these advantages come unrecognized perils. The transparency and mobility of electronic information creates significant risks to clients, unless properly controlled. As part of the project to rein in technology in the practice of law, the American Bar Association launched an ambitious multi-year project called Ethics 20/20. One of the major goals of Ethics 20/20 was to modernize the rules of ethics and bring them into congruence with the state of technology.


At its most recent meeting, the ABA passed multiple resolutions amending the Model Rules of Professional Responsibility to reflect the evolution of technology in the practice of law. This article provides a brief overview of those amendments. Those who are more interested in the details of the amendments can click here to read the reports online.


Confidentiality When Using Computers
Resolution 105A makes changes to help lawyers understand how to protect client confidences when using new technology, including cloud computing, tablets, and smartphones. Though small, one of the most significant changes is included in Comment 6 to Rule 1.1 (Competence). The Rule now includes a requirement that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” No longer can attorneys simply ignore developments in favor of staid methods of practice. To be competent, an attorney must work effectively with technology and keep alert to technological improvements and changes.

The amendment to Rule 1.6 (Confidentiality of Information) is probably the largest and most impactful rule change related to confidentiality. Now, Rule 1.6(c) requires attorneys to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating the representation of a client.” The comments make it clear that attorneys are required to utilize reasonable safeguards to protect confidential information. These changes are geared toward the protection of electronic data, especially given the innumerable bits of sensitive information flying around every day.


Using Technology for Marketing
Resolution 105B was designed to help lawyers understand how the principles of attorney advertising already incorporated into the Rules are affected by the growth of Internet-based marketing and social networking. This particular resolution accomplishes three main goals. First, changes to Rule 1.18 offer guidance on how to market online without inadvertently forming an attorney-client relationship. Recent cases have demonstrated confusion on behalf of the general public regarding whether an attorney-client relationship is formed when the potential client emails the attorney or fills out a communication form on the attorney’s website. The amendments to Comment 2 of Rule 1.18 address the concern by stating that a person becomes a prospective client by “consulting” with a lawyer. While the existence of a consultation depends on the circumstances, the Comment eliminates potential passive liability to prospective clients. A consultation “does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest.” But, if the lawyer actively invites information about a possible representation, the lawyer is probably stuck with a prospective client.

Second, the Rules contain a prohibition against paying others for a “recommendation,” and this Resolution modifies that prohibition to account for online lead generation services through chances to Comment 5 of Rule 7.2. Lawyers may now pay others for generating client leads, as long as the Internet-based lead generator does not “recommend” the lawyer. The lawyer is also responsible for the representations of the lead generator, with Comment 5 placing the onus on attorneys to ensure that the lead generator is not making statements that are inconsistent with the rules.

Finally, amendments to Rule 7.3 assist attorneys in determining when communications on the Internet, particularly through social networking sites, may constitute a “solicitation.” Only a “target communication initiated by the lawyer” directed to a “specific person” that “offers to provide” legal services is a solicitation. Communications to the general public, including Internet banners, are not solicitations, so feel free to jump on that Facebook advertising spot.


Outsourcing
Lawyers have been slow to adopt the economies of scale that outsourcing can provide, in part because of the perceived ethical dilemmas presented in outsourcing. Outsourcing can endanger confidential client information and presents a quandary over legal work being performed by attorneys not licensed in the United States. Resolution 105C encourages attorneys to ensure the efficiency, competence, and ethics of any outsourcing process. An entirely new comment is added to Rule 1.1, requiring the informed consent of the client to contract with any lawyer outside of the lawyer’s own firm. And, lest we forget, lawyers are always charged with supervising non-lawyers; that requirement does not abate simply because work is being outsourced to a foreign country. Comments 1 and 3 to Rule 5.3 incorporate this concept and apply the general rule to all non-lawyers outside of the lawyer’s own firm. The basic gist of the changes in Rule 105C is to encourage lawyers to keep a sharp eye on professionals hired from outside their own firm, and to work closely with clients in determining the proper scope of outside contracting and supervision. No surprise there—constant communication with the client is a harbinger of a durable and responsible attorney-client relationship.


Mobile Lawyers
A prevalent by-product of an informationally small, but geographically large, practice is the tendency of lawyers to move their practice. The world does indeed get smaller every year. No longer do lawyers move down the street; more and more, attorneys are moving their practice to different jurisdictions, and virtual law offices are sprouting in all states. The remaining resolutions that passed enable attorneys to establish a practice in another jurisdiction—subject to stringent information protection requirements—while pursuing admission in that jurisdiction. Resolutions 105D and 105E address the ABA Model Rule of Practice Pending Admission and the ABA Model Rule on Admission by Motion, respectively. With a few states signaling their intent to adopt a uniform bar exam, these model rules and their amendments continue the progress toward a more uniform practice of law. In case you have never encountered these model rules, or their state versions, their purpose is to allow experienced lawyers who have moved into a different jurisdiction to continue to practice while awaiting an expedited admission to the Bar. 

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On Friday, August 24, a nine member jury entered a verdict in favor of Apple and awarded almost $1.05 billion in damages.  Apple filed suit against one of its largest competitors, Samsung Electronics, in April 2011, and alleged that Samsung’s Galaxy line of smartphones and tablets infringed seven of Apple’s patents covering the iPhone and iPod products.  In turn, Samsung countersued alleging that Apple infringed Samsung’s patents covering various wireless software components of its products.  After more than a year of highly contentious litigation and following a trial that began at the end of July and lasted the better part of August, the jury deliberated for less than three days before delivering the verdict in favor of Apple. 

Prior to trial, Apple received a significant e-discovery victory when the court sanctioned Samsung for its failure to preserve emails after Samsung should have anticipated the lawsuit by Apple.  The court determined that Samsung had a duty to preserve evidence as of August 23, 2010, and while Samsung issued a litigation hold and provided instructions detailing how to save emails using its email system, Samsung failed to disable the auto-delete function of its email system, which automatically deleted all emails every two weeks in Samsung’s Korean offices.  The court ordered that, as part of the sanctions, the jury would be allowed to draw an adverse inference against Samsung and that the jury would be told to presume that relevant evidence was destroyed and that the lost evidence was favorable to Apple.  

The court also entered pretrial preliminary injunctions against Samsung barring the sale of the Galaxy Nexus phone and the Galaxy Tab 10.1 in the United States. Moreover, the court delivered various ruling for and against both parties on various in limine motions.  One ruling against Samsung appeared to be very significant: Samsung took issue with the court’s ruling that, because Samsung failed to disclose in time contentions that Samsung’s designs were in development before the iPhone, Samsung was precluded from using slides containing images of the Samsung designs.      

In opening statements and during trial, Apple set forth its theory that Samsung had ripped off the unique design features of the iPad and iPhone and infringed certain utility patents.  Apple focused on comparisons between Samsung’s phones from 2006 to its newer smartphones from 2010.  Also, Apple relied on internal documents from Samsung comparing Samsung’s products with the iPhone hardware.  On the other hand, Samsung maintained the position that Apple had no right to claim a monopoly on certain design features that were not revolutionary.  Samsung’s theory to demonstrate non-infringement was to get the jury to focus on the specific legal requirements relating to each of Apple’s patents.  Samsung also went on the offensive by attempting to prove that Apple’s products use certain Samsung features for mobile devices, such as the process for emailing photos and the technology relating to easily finding photos in an album.  Moreover, Samsung attempted to demonstrate that Apple’s patents were invalid due to developments in technology that existed before Apple claimed to have invented such technology.  The parties relied on various liability and damages experts to support their respective positions. 

During closing arguments, counsel for Apple argued that Samsung copied Apple’s designs after realizing that Samsung could no longer compete with Apple.  Samsung, in turn, argued that a verdict in favor of Apple would severely suppress competition and reduce consumer choices.  In the end, with more than 100 pages of legal instructions, the jury was able to complete a 20 page-long verdict form and return a verdict in less than three days.    
       
For the specific articles from which the information in this summary was obtained, please visit http://newsandinsight.thomsonreuters.com/Legal/.  

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