Consents Advice and Lawyer-to-Lawyer Referral Guide 2007

2007 Lawyer-to-Lawyer Referral Guide
June 2007 / $4
Advice and
E A R N MCLE CR E D I T
Consents
Los Angeles lawyer Diane Karpman analyzes the
enforceability of advance consents page 23
PLUS
Electronic Service Providers page 13
Licensing Issues in New Media page 17
Blogosphere Scams page 32
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F E AT U R E S
23 Advice and Consents
BY DIANE KARPMAN
The enforceability of advance consents depends in large measure on their
specificity and the sophistication of the client
Plus: Earn MCLE legal ethics credit.
MCLE Test No. 160 appears on page 25.
32 Pollution in the Blogosphere
BY JEFFREY D. GOLDMAN AND ERIC J. GERMAN
The explosive growth of blogs has led to yet more techniques for
online scamming
39 Special Section
2007 Lawyer-to-Lawyer Guide
D E PA RT M E N T S
Los Angeles Lawyer
the magazine of
10 President’s Page
Time’s up
BY CHARLES E. MICHAELS
The Los Angeles County
Bar Association
June 2007
Volume 30, No. 4
COVER PHOTO: TOM KELLER
46 Computer Counselor
Overcoming e-discovery challenges with
new technologies
BY RAMANA VENKATA AND MICHAEL A. GEIBELSON
12 Barristers Tips
Building a successful mentoring
relationship
52 Closing Argument
First thing, let’s jail all the lawyers
BY GAVIN HACHIYA WASSERMAN
BY KEITH PAUL BISHOP
13 Practice Tips
The advantages of using electronic
service providers
49 Classifieds
BY WAYNE G. NITTI
50 Index to Advertisers
51 CLE Preview
06.07
17 Practice Tips
How licensing issues are affecting recent
media developments
BY DOMINIQUE R. SHELTON
ARBITRATION and MEDIATION
ALL TYPES OF DISPUTES BETWEEN INDIVIDUALS AND COMPANIES
International Trade Disputes • Discovery • Accounting and Financial
Statement issues and disputes • Corporate and small business marketing
issues and disputes • Human Resource issues, and disputes between
large corporations and small companies • Contract disputes of all kinds •
Homeowner Associations disputes and issues • Domestic and partnership
relationship disputes including divorce
LosAngelesLawyer
VISIT US ON THE INTERNET AT www.lacba.org/lalawyer
E-MAIL CAN BE SENT TO [email protected]
EDITORIAL BOARD
Chair
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Articles Coordinator
ALL REAL ESTATE, INCLUDING: Evaluations • Contracts • Zoning • Development • Construction • Secondary
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GORDON ENG
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STUART R. FRAENKEL
MICHAEL A. GEIBELSON
TED HANDEL
JEFFREY A. HARTWICK
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LAWRENCE J. IMEL
SCOTT KLOPERT
JOHN P. LECRONE
PAUL MARKS
SEAN MORRIS
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DAVID SCHNIDER
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KENNETH W. SWENSON
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BRUCE TEPPER
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4 Los Angeles Lawyer June 2007
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ASSOCIATION OFFICERS
President
CHARLES E. MICHAELS
President-Elect
GRETCHEN M. NELSON
Senior Vice President
DANETTE E. MEYERS
Vice President
DON MIKE ANTHONY
Treasurer
JULIE K. XANDERS
Assistant Vice President
ALAN K. STEINBRECHER
Assistant Vice President
LINDA D. BARKER
Assistant Vice President
JOHN D. VANDEVELDE
Immediate Past President
EDITH R. MATTHAI
Executive Director
STUART A. FORSYTH
Associate Executive Director/Chief Financial Officer
BRUCE BERRA
Associate Executive Director/General Counsel
W. CLARK BROWN
BOARD OF TRUSTEES
P. PATRICK ASHOURI
NICOLE C. BERSHON
GEORGE F. BIRD JR.
DANIEL S. BISHOP
JOHN M. BYRNE
JOHN CARSON
ANTHONY PAUL DIAZ
STACY L. DOUGLAS
ALEXANDER S. GAREEB
ANTONIO J. GONZALEZ
BRIAN S. KABATECK
KARL H. KNICKMEYER JR.
ROBERT N. KWAN
PHILIP H. LAM
DAVID A. LASH
LAWRENCE E. LEONE
RICHARD A. LEWIS
CINDY J. MACHO
ELAINE W. MANDEL
DAVID F. MICHAIL
JEFFREY P. PALMER
ELLEN A. PANSKY
THOMAS F. QUILLING
SUSAN ERBURU REARDON
ROGER D. REYNOLDS
KELLY RYAN
DEBORAH CRANDALL SAXE
MARGARET P. STEVENS
KIM TUNG
GAVIN HACHIYA WASSERMAN
ERIC A. WEBBER
AFFILIATED BAR ASSOCIATIONS
BEVERLY HILLS BAR ASSOCIATION
BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC.
CENTURY CITY BAR ASSOCIATION
CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES
CULVER-MARINA BAR ASSOCIATION
EASTERN BAR ASSOCIATION
GLENDALE BAR ASSOCIATION
IRANIAN AMERICAN LAWYERS ASSOCIATION
ITALIAN AMERICAN LAWYERS ASSOCIATION
JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES
JOHN M. LANGSTON BAR ASSOCIATION
JUVENILE COURTS BAR ASSOCIATION
KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
LAWYERS' CLUB OF LOS ANGELES COUNTY
LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES
LONG BEACH BAR ASSOCIATION
MEXICAN AMERICAN BAR ASSOCIATION
PASADENA BAR ASSOCIATION
SAN FERNANDO VALLEY BAR ASSOCIATION
SAN GABRIEL VALLEY BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC.
SOUTHEAST DISTRICT BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WHITTIER BAR ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
6 Los Angeles Lawyer June 2007
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THE HOLMES LAW FIRM
I
t is hard to believe that my service as chair of the Los
Angeles Lawyer Editorial Board is coming to an end this
month. The time spent leading the magazine’s diverse volunteers during the 2006-07 bar year has been well worth the
rich experiences gained in return. Aside from being chair, my
time as an Editorial Board member has been a great way to stay current on developments in the law and, more important, leave a mark on the legal profession.
Board members have the opportunity to work with and learn from knowledgeable authors about a wide range of legal subjects. We also have the chance to build
new or cement existing relationships with fellow board members. With close to 40
lawyers from a variety of practices serving on the board, it is likely that the answers
to any questions about confounding or unfamiliar legal issues can be found within
the group. I look forward to stepping down as chair and taking a seat next to my
fellow board members for many more years to come.
The work of our exceptional authors continues to gain notice. This past February,
the California Supreme Court, in Vineyard Area Citizens for Responsible Growth v.
City of Rancho Cordova,1 cited an article, published in the magazine’s January
2005 issue, that was written by Editorial Board member Bruce Tepper. Numerous other
Los Angeles Lawyer articles have been cited by courts, law reviews, and other legal
publications. These citations occur not only because our readership includes lawyers,
judges, and legislators but also because our articles consistently provide excellent, indepth analyses of current legal issues. The fact that our articles are frequently referenced confirms that the magazine and the volunteer efforts of our authors and the
Editorial Board play an important role in shaping the law. Writing for the magazine
is an excellent way to gain recognition and expert status in a practice area.
With my last column, I would like to encourage all of you, our readers, to volunteer. The best way to get started is to develop and write an article for the magazine. We are always eager to publish well-written articles on substantive legal issues
in every area of law. We do not publish articles that have already appeared in print
elsewhere. Our authors are encouraged to bring depth and context to current legal
developments that lawyers need to know about in their daily practices. If you
would like to become one of our authors, please visit the magazine at
www.lacba.org/lalawyer for instructions on how to submit an article.
Also, consider becoming a board member next year. You will have the opportunity to edit a variety of articles and meet many of your fellow practitioners,
either as potential authors or fellow board members. If you would like to find out
more about volunteering for the magazine and the time commitment involved, feel
free to contact me or any other board member.
Finally, I would like to extend a sincere thank you to the magazine’s staff for their
great efforts during the last 12 months and to Chad Coombs, who served as articles coordinator with me and now assumes the role of Editorial Board chair for 200708. Best of luck to everyone.
■
1
Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, ___ Cal. 4th ___, S132972
(Feb. 1, 2007) (citing Bruce Tepper, New Water Requirements for Large-Scale Developments, LOS
ANGELES LAWYER, Jan. 2005, at 18).
626-432-7222 (Phone)
626-432-7223 (Fax)
[email protected]
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8 Los Angeles Lawyer June 2007
Jacqueline M. Real-Salas is a partner at Calleton, Merritt, De Francisco & Real-Salas, LLP, where
she specializes in estate planning, trust administration, probate, and elder law. She is the
chair of the 2006-07 Los Angeles Lawyer Editorial Board.
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AL9416
president’s page
BY CHARLES E. MICHAELS
Time’s Up
THE GREAT FRENCH PHILOSOPHER, Albert Camus, wrote, “I shall tell
you a great secret, my friend. Do not wait for the last judgment. It
takes place every day.” These words are particularly appropriate for
a president of this Association, whose term runs a mere 365 days. My
time is now short, and while presidents come and go, the needs of the
Association and our profession never stop. That’s why it is important
for us to have and to build upon a good foundation.
When I was sworn in last June, I identified three areas in which
the Association needed to work: active institutional engagement, a
greater inclusiveness of our stakeholders in the affairs of the Association, and long-range strategic planning. While I would like to
report that we hit home runs in these areas, the reality is that we managed to hit singles and doubles. But the result is that they have put
us on base and in a position to score.
Active institutional engagement. How we face the future affects
all of us. To ensure that we are optimally organized as an Association,
I appointed a special committee of members of the Board of Trustees
to review our governance structure. The committee looked both
inward and outward. Together we have worked to modernize our internal structure and to create a framework to address the needs of our
members and constituent communities. It is my hope that by joining
forces, working together, and listening to one another, we have set in
motion a modernized bar that is equipped to meet the challenges ahead.
Greater inclusiveness. We have taken very seriously our pledge to
listen to our stakeholders by instituting a special membership committee whose goal is to open a new era in dialogue among the Association’s constituencies. With the able assistance of the Association’s
marketing director, Tim Elliott, and trustee Bob Kwan, we conducted a survey of almost 6,000 members, the Association’s largest
survey ever. We found that more than 90 percent of the respondents
reported that their expectations in joining the bar had been successfully met.
The Barristers and their president, Gavin Wasserman, worked with
our marketing department to reach out to local law schools. As a result,
we increased law student membership from a few hundred to more
than 1,000. Thank you, Tim and Gavin.
Our sections are an extremely important part of the Association,
and we owe a debt of gratitude to their officers and executive committees for the tremendous work that they do for all of us. The popularity of our sections is self-evident, with more than 14,000 paid memberships.
In April, the Board of Trustees approved the formation of the Senior
Lawyers Section, modeled after the ABA’s Senior Lawyer Division.
Under the initial and able leadership of David Pasternak, a former
Association president, and assisted by such luminaries as Seth
Hufstedler, Pat Phillips, and Joe Mandel, our senior lawyers section
will provide leadership as increasing numbers of our membership reach
the latter stages of their careers.
Strategic long range planning. To continue to serve our members
and the community, the Association must periodically reinvent itself
10 Los Angeles Lawyer June 2007
and continuously innovate and improve its structures and services.
The Association’s Plans Committee and Governance Committee have
taken a serious look at the major areas of the bar, how they relate to
one another, and how they respond to our many constituencies. We
are formulating a blueprint that will enable the board to look far
beyond any given moment, on any issue, and to provide direction in
achieving the Association’s long-range goals and objectives. These institutional structures will facilitate your ability to be heard on important issues. My heartfelt thanks to those who have served on those
special committees.
While concentrating on these three important concerns of the
Associations, we have also achieved much in other areas:
• Judicial elections. Last fall, we made a major effort to educate the
public and publicize the Association’s evaluations of candidates running for election to the superior court. Under the leadership of Brent
Braun, chair of the Judicial Elections Evaluation Committee, we significantly upgraded our Web page, sent out multiple e-mails to all our
members prior to the elections, and worked with the media to publish our evaluations for contested judicial offices.
• The courts. Behind the scenes, we have continued to expand our
dialogue with the courts into a meaningful partnership in tackling some
of the most serious concerns facing our members, the profession, and
the citizens of our state.
• Dialogues on Freedom. Last October, the Los Angeles Unified
School District honored the Association for its “Dialogues on Freedom” program, in which, for the last five years, lawyers from the
Association and judges have gone into many area high schools and
guided the students through discussions on the freedoms and responsibilities of being an American. Thank you, David Barker and your
committee members.
• Disaster preparedness. In January we hosted a Bar Leaders’
Conference on disaster preparedness with experts from New York City
and New Orleans discussing their experiences in the wake of the 9/11
attacks and Hurricane Katrina. From that conference, which was
chaired by John Vandevelde, a Disaster Planning Task Force was created with volunteers George Bird, Dan Crowley, Luci Chun, Doug
Griffith, and Cynthia Lebow.
• National recognition. The Association recently received four awards
from the American Bar Association and three more from the National
Association of Bar Executives in publications, Web design, and marketing. When you consider that NABE makes only 5 awards annually to associations of our size, it represents a remarkable staff accomplishment.
• Diversity. This month the Association is hosting a Diversity Summit.
Its goal is to address the need to increase the number of people of color
who become (and remain) lawyers by examining the “pipeline”
Charles E. Michaels, vice president and general counsel of LAACO, Ltd., is 200607 president of the Association. He can be reached at charles.michaels
@laaco.net.
through which youngsters eventually make
their way into the profession. Senior Vice
President Danette Meyers is leading the effort
on this long-term project. In a state bar that
is 83 percent white, we can do better to reflect
the communities that we serve.
Future Challenges
While there is much we can be proud of,
there is still much to be done as storm clouds
swirl on the horizon. Simply put, the legal system today is not meeting the needs of most
Americans. The majority of people caught up
in the legal system are not represented by
counsel, and only 28 percent of the urgent
legal needs of the state’s poorest residents
are met. Those most in need tend to be disproportionately poor, elderly, ill, handicapped,
and minorities. I ask you to remember them,
and to seek opportunities to serve them and
to support pro bono activities.
Peter Drucker, the great management consultant, once asked me, “At the end of your
life, what do you want to be remembered
for?” It was a rhetorical question, designed
to initiate a discussion of life’s significance. We
concluded that at the end of our life, it’s not
how successful we were in our careers that is
meaningful, it’s not how much money we
made, or how big a house we live in that
matters. It’s about living a life of significance—about how significant we were in the
lives of others, whether a loved one, a child,
or a stranger in need of help. It’s about believing in and acting on causes that are greater
than ourselves.
As this bar year closes, a heartfelt thank
you is owed to the other leaders of the Association with whom I have served and from
whom I have learned much more. A special
thank you is due to our executive director,
Stuart Forsyth, and his capable staff; to the
members of the board of trustees, sections,
and committees; and to those of you who are
actively working in great causes. I cannot
publicly thank each of you, but you know
who you are, and I am indebted to you. Your
participation in the causes greater than yourself exemplifies what is best—and great—in
America.
Your officers have served you capably,
and I wish my successor, Gretchen Nelson,
much success during her term of office. I
would also like to offer many thanks to my
family and to my colleagues at LAACO, Ltd.,
who have made possible my ability to serve.
When I look back in the twilight of my years,
I will think of the great work that you have
done, and I will remember the words of
Margaret Mead: “Never doubt that a small
group of thoughtful, committed citizens can
change the world; indeed, it is the only thing
that ever has.”
Together we have made a difference. ■
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Los Angeles Lawyer June 2007 11
barristers tips
BY GAVIN HACHIYA WASSERMAN
Building a Successful Mentoring Relationship
FOR NEW LAWYERS, finding a mentor can be critical to professional
success. A good mentor-mentee relationship can open new doors
and create new opportunities for both parties. Developing a successful
mentoring relationship requires, at the very least, a combination of
opportunity, communication, and commitment. However, knowing
where to start is not as easy as it might seem. Students leave law school
having studied cases and written papers. While networking and
developing relationships may happen organically in the confined
sphere of law school, once released out into the world, new lawyers
often feel suddenly alone and adrift.
But mentoring opportunities and programs do abound. Certain
employers create in-house mentoring programs, while bar associations
can offer many opportunities to match attorneys with attorneys or
attorneys with students. Some of these programs involve group mentoring, while other programs focus on more traditional one-on-one
relationships. Some programs are completely free-form and organic,
while others are highly structured, with events and assignments to foster bonds between the mentor and the mentee. Beyond mentoring programs, there are also professionals out there who are willing to be mentors, and they only need to be approached by the right potential
mentee.
A prospective mentee should start with his or her law school, which
may have a formal mentoring program or at least social events
hosted by the alumni association. Even at nonmentoring alumni
events, a prospective mentee can talk to mentor prospects. These events
let alumni get to know one another and feel a bond between one
another and their school, so new lawyers should feel free to step forward and meet people. There is bound to be a member of the development staff or an alumni association officer present who would be
happy to help with networking.
Bar associations, like alumni groups, are always looking for new,
energetic members. Even if the association does not have a formal mentoring program, participating in bar sections and events exposes the
new lawyer to many potential mentors.
Whatever road leads to a potential mentor, the key to success is
the same as in any human relationship: communication and commitment. Establishing and reinforcing that commitment is not easy,
particularly between strangers paired by a matching program. If
finding socially or professionally compatible human beings were as
simple as drawing names from a hat, whole segments of the economy
would collapse tomorrow. Neither prospective mentor nor mentee will
likely know immediately if they have been paired with the right
partner.
Mentors, like mentees, come in many different varieties. Some possess specific knowledge of a practice area or how things work at a particular place of employment. The depth and character of the relationship can vary. A person can have many mentors at different
times of life, and each of these persons can affect either a narrow slice
of a mentee’s career or can become an integral part of many aspects
of a mentee’s life.
12 Los Angeles Lawyer June 2007
The first and most important task for a prospective mentor and
a mentee is to communicate. While listening is always key, both parties also need to articulate what they are looking to accomplish.
This process sets up initial goals as well as boundaries on expectations. The depth of commitment, trust, and rapport in a mentoring
relationship can vary and progress, but not without communication.
A Significant Commitment
Mentor and mentee have to be committed to not wasting each other’s time. Some mentoring program experiences end up as extended
introductions, a series of infrequent lunch meetings without particular purpose other than to socialize. While touching base is important, it can be done just as well at a bar event or networking reception, where the pair might kill two birds with one stone. Either one
of the participants can be proactive in this regard. A brief e-mail message in advance can lay the groundwork for productive time together,
much as an agenda for a meeting would do, and also present a goal
to energize the participants. For example, the goal could be for the
mentor to introduce the new litigator to some litigation partners at
various firms. The two participants show up, chat and catch up, and
then network, accomplishing something that sustains and grows the
mentoring relationship.
When a mentoring arrangement does not seem to be productive,
it is best to be proactive even in the ending. A mentor or mentee who
finds a counterpart to be unavailable or unresponsive should simply
send a friendly note stating that the sender recognizes the recipient
is very busy and invites contact if and when time permits. If it was
just a bad time for the counterpart and things get better, then perhaps
the relationship can be renewed; either way, the sender has put the
ball firmly and politely in the other’s court.
Participants should keep in mind that the mentoring relationship
is an intersection, not a one-way street. The mentee can contribute
something valuable to the mentor: perspective, new contacts, or
even just the impetus to take part in professional and social activities. Mentoring can be inclusive rather then exclusive, bringing in other
potential mentors and mentees. For example, a new lawyer mentors
a law student, who goes on to clerk for a federal judge and facilitates
a connection between the lawyer and the judge.
As time passes, the hierarchy inherent in the mentor-mentee relationship can sometimes dissolve, as when a fifth-year attorney and a
new admittee mentee reach different career milestones, such as 10th
and 5th year, and 15th and 10th. In time, the mentee and the mentor may be peers litigating in the same courts or closing the same kinds
of deals (or referring business to each other). A Barrister may be thinking about finding a mentor today but may be well served by becoming a mentor as well.
■
Gavin Hachiya Wasserman handles real estate and estate planning matters
with Wasserman & Wasserman, LLP, in Torrance and is president of the
Barristers.
practice tips
BY WAYNE G. NITTI
The Advantages of Using Electronic Service Providers
MAIL OR COURIER? When court-filed documents and discovery Procedure.9 Each time a document is electronically submitted to the
require service on opposing counsel, law firms rarely consider other court, the Case Management/Electronic Case Files (CM/ECF) system
options. Reliance on traditional paper-based service, however, is utilized by most district courts throughout the country generates a
changing. Widespread access to the Internet at law firms and the adop- Notice of Electronic Filing (NEF)—an e-mail message containing a
tion of rules authorizing—or even mandating—electronic transmis- hyperlink to the filed document. District court local rules or general
sion of documents in various courts have led to a powerful alterna- orders typically provide that participation in the ECF system constitutes
tive for attorneys: electronic service.
consent to electronic service and that transmission of an NEF conTo facilitate this process, commercial online e-service providers stitutes service.10
(ESPs) have emerged. ESPs enable attorneys to serve documents elecESPs are part of a broader class of application service providers
tronically and manage their litigation over the Internet. Working —third-party entities that manage and distribute software-based serwith ESPs, law firms can reduce the costs of service, access case documents remotely, and
coordinate teams of attorneys and staff. The
After a document is served through an ESP, it is automatically
resulting benefits can be dramatic.
Many jurisdictions throughout the country
expressly authorize e-service upon consent of
added to an electronic repository that can be accessed remotely
the parties. Some courts have gone a step further by requiring e-service for particular types
of cases. To the extent e-service is required, it
by any member of a litigation team. Moreover, built-in databases
typically is implemented as part of a mandatory e-filing program.
California follows this general pattern.
can be used to search, sort, group, and isolate case records.
Although not required by any statewide rule,
e-service has been approved for use in all state
court proceedings. Pursuant to the mandate of
Code of Civil Procedure Section 1010.6(b), the Judicial Council of vices and solutions to customers across a wide area network from a
California has adopted Rules of Court expressly authorizing e-ser- central data center. When used during litigation, ESPs become either
vice in cases in which the parties have consented or upon order of the required means or an authorized means of serving case documents
the court.1
among parties.
A party may consent to e-service in any California state court matter either by express agreement or by electronically filing any docu- Core Functions of an ESP
ment with the court.2 Also, “[t]he court may, on the motion of any ESPs differ materially in design, document management, advanced feaparty or on its own motion, order all parties to serve and file all doc- tures, and access control. However, three core functions define ESPs:
uments electronically in any class action, a consolidated action, a group a service interface, a notification mechanism, and an online case file.
of actions, a coordinated action, or an action that is deemed complex
The service interface is accessed through the ESP’s Web site and
under rule 3.403, after finding that such an order would not cause is the tool by which attorneys upload case documents in electronic
undue hardship or significant prejudice to any party.”3
form. Some ESPs require that documents be transmitted in PDF files
At the local level, some courts have used this rule to mandate e- while others convert records to this universal format following transservice in particular types of cases through a general order or a mission.
The notification mechanism is the vehicle for informing users
standing order. In San Francisco Superior Court, for example, asbestos
matters are subject to mandatory e-service and e-filing.4 The same is that a document has been electronically served in a proceeding. ESPs
true of construction defect litigation in San Diego Superior Court,5 typically accomplish this objective via e-mail.
The online case file is a repository of litigation documents indexed
most complex litigation in Contra Costa County,6 and select types of
and organized within the ESP’s system. As documents are uploaded
litigation in other counties.
Once e-service is permitted in a California case, other rules relat- through the service interface, the ESP stores the records and compiles
ing to e-service come into play. Pursuant to these rules, service is an electronic pleading and discovery file cabinet that can be accessed
deemed complete at the time of transmission,7 and two court days are
added to the response period for electronically served documents.8
Wayne G. Nitti is an attorney admitted in California and the founder of Case
At the federal level, service of case documents by electronic means
Anywhere LLC, a national online case management and e-service provider based
is authorized by Rule 5(b)(2)(D) of the Federal Rules of Civil
in Santa Monica.
Los Angeles Lawyer June 2007 13
anywhere via an Internet connection.
Some ESPs combine these core components with other advanced functions that
include message boards, deposition libraries,
and case calendars. When these premium
features are present, ESPs can function effectively as a case management center that offers
not only a method for serving documents
but also a means for counsel to access and
search case records efficiently, communicate
with other case participants, track important litigation dates, and store and retrieve
deposition transcripts.
Using an ESP only requires an Internet
connection, an e-mail address, and the ability to open a PDF document. A document
scanner to convert paper records to electronic files is also recommended, although it
is not required because ESPs or third-party
vendors can provide scanning services.
Why should the use of an ESP be considered when electronic service can be accomplished by e-mail attachment? The answer is
simple. The use of ESPs allows attorneys to
avoid problems typically associated with email service. Moreover, ESPs do much more
than electronically serve documents.
The problems that arise in connection
with serving documents by e-mail include:
• Delay or nondelivery of e-mail when large
attachments are appended. ESPs typically
include document links—not attachments—
in e-mail notifications.
• Transmission of computer viruses. ESPs
usually have built-in virus protection.
• Disputes over whether service took place.
ESPs can provide third-party verification.
• Inadvertently omitting or incorrectly typing e-mail addresses. ESPs generally do not
require manual entry of e-mail addresses in
their service interface.
• File attachments that cannot be opened.
ESPs store documents in universal PDF format.
Although service by e-mail attachment
will transmit a document, little else is accomplished. Once received, an e-mail attachment
must be printed out and organized with other
case documents, distributed among firm attorneys and professional staff working on the
matter, and maintained as part of an active
paper litigation file. In comparison, after a
document is served through an ESP, it is automatically added to an electronic repository
that can be accessed remotely by any member of a litigation team. Moreover, built-in
databases can be used to search, sort, group,
and isolate case records. These features, along
with other attributes of more robust ESPs, further distinguish ESPs from basic e-mail.
Range of Benefits
The benefits of using an ESP are measured in
terms of cost savings, convenience, and coordination. These benefits potentially can be
14 Los Angeles Lawyer June 2007
realized in any size or type of litigation.
Service of pleadings and discovery through
an ESP eliminates expenses associated with
traditional methods, including postage and
courier fees, administrative time dedicated
to duplication and preparing service packets,
supply costs (paper, envelopes, labels, print
cartridges, and toner), and copier wear and
tear. In larger cases, the savings can be substantial. Additional benefits of using an ESP
include eliminating service errors, avoiding
service disputes, and alleviating the time
crunch associated with bulk mailing. What
previously may have been an expensive and
time-consuming exercise can be reduced to
completing a few fields on a service interface and clicking a mouse. These benefits,
however, are only part of the story.
Many lawyers believe that online access to
case documents is the biggest draw to using
an ESP. An electronic pleading and discovery
file cabinet ensures that an attorney’s case
documents are available anywhere, anytime
through the Internet—at home, on the road,
during a deposition, or at a client meeting.
The online file renders paper pleading clips
and the distribution of documents within a
firm potentially unnecessary, thereby reducing office clutter and storage requirements.
These benefits are magnified when teams
of attorneys, paralegals, and professional
staff are working on a case, particularly when
matters are staffed across offices and redundant paper files otherwise would be required.
For traveling attorneys, documents served in
their absence can be retrieved without delay.
For parties to the litigation and a firm’s
experts and consultants, access to all or part
of the online case file may be provided by
ESPs. When Internet connectivity will not be
available, records can be printed out or
exported to a desktop or laptop computer in
advance.
The overall value to attorneys is enhanced
by additional features present in some ESPs.
Counsel can efficiently use message boards to
communicate administrative information,
coordinate schedules, identify outstanding
issues, and send reminders. Deposition
libraries are another value-added service that
can be used by firms to store transcripts for
remote access by their litigation team.
Moreover, attorneys are not the only members of the legal profession benefiting from
ESPs. Judges, particularly those presiding
over complex litigation, have effectively used
ESPs to manage the paper crush, access case
records away from the courtroom, circulate
orders and tentative rulings, and communicate efficiently with attorneys on case matters
through message board postings.11 In many
proceedings, ESP services are provided free of
charge to the court.
Given the range of potential benefits, an
ESP still has a place in federal practice, despite
widespread adoption of the CM/ECF system
by district courts. In courts in which the
CM/ECF system has been implemented, the
online case file is skeletal and does not support advanced searches. Also, many functions offered by commercial ESP providers are
absent. Further, discovery not filed with the
court is not served and made available
through the system. The value added by an
ESP, particularly in those cases coordinated
under multidistrict litigation (MDL) and
larger federal proceedings, merits consideration of this collaborative tool notwithstanding certain unavoidable redundancies present
in using an ESP and the CM/ECF system.
Common issues raised in connection with
the use of ESPs involve whether paper documents can be served electronically, whether
an online case file is secure, and whether an
ESP Web site can be accessed without interruption. These questions reflect valid concerns that ESPs can address, given that their
purpose is to make service and document
access easy and secure.
Documents in hard copy form, such as
exhibits to motions, can be converted to electronic files through scanning capabilities
already present at most law firms. If a scanner is not available, ESPs or third-party vendors can provide scanning services.
Access to court records over the Internet
is commonplace. Many state courts, including the Los Angeles Superior Court, periodically scan case filings and make them available for sale over the Web. For federal cases,
users can log on to the Pacer system and
download district, appellate, and bankruptcy
court records from across the country.12 As
court-filed documents are generally a matter
of public record, making these documents
available through an ESP affects only the
ease of retrieval, not the scope of access.
Discovery documents, which are not publicly available unless included in a court filing, are a different matter. ESPs generally
store discovery documents, as well as other
case records, by using one of two secure
methods. Some ESPs limit access to a particular online case file to individuals involved in
the case, such as the judge, court clerks, the
parties, attorneys of record, and their agents.
Within this group, some ESPs permit document access to be further restricted. Other
ESPs make each case file generally available
to all users of their system but allow an attorney, when serving a document, to restrict
access only to individuals being served. ESPs
also use passwords, encryption technology,
firewalls, and other security measures to protect online case files.
The possibility of an ESP’s Web site
becoming unavailable is an alarming prospect
to most attorneys. If the Web site goes down,
attorneys cannot serve or access case records,
at least temporarily. Attorneys concerned
with this possibility should request information about an ESP’s server redundancies,
method of data backup, and history, if any,
of unscheduled downtime. Because the business of an ESP is to provide online service and
document retrieval capabilities, appropriate
safeguards should be in place to ensure uninterrupted access. Moreover, by periodically
downloading and storing case documents on
a local computer or external storage device,
attorneys can maintain their own backup
case file in case of an emergency.
Introducing an ESP into a Case
When use of electronic service is not mandatory, the manner and timetable in which an
ESP is introduced into a proceeding varies on
a case-by-case basis. Any civil proceeding
currently being handled by an attorney is a
potential candidate for an ESP, whose services
can be valuable at any stage of a litigation.
Case management and status conferences
are logical forums for considering an ESP
during the early stages of the litigation
process. All counsel generally are present,
and threshold procedural issues are being
discussed. Either the court or counsel may
raise the matter for discussion. Alternatively,
an attorney may broach the prospect of using
an ESP informally with other counsel or coordinate a demonstration of a provider’s capabilities. Use of an ESP may also be raised by
motion in certain contexts.
Introducing the subject of an ESP also
can occur later in the course of litigation.
Events that may trigger a discussion about
using an ESP in a case include the coordination of actions or the determination that
other related actions have been filed, the
addition of parties to a litigation, and an
assessment that the document activity in the
case is greater than originally anticipated.
Often, the need for an ESP is first recognized by counsel, who stipulate to the use of
an ESP and seek issuance of a confirming
court order. This order routinely designates
the ESP as the exclusive means of serving
documents in the litigation and covers various procedural details. The attorneys then
provide basic contact information to the ESP,
which establishes an online case file and issues
user names and passwords to court and counsel. ESPs also can be introduced into a proceeding without judicial intervention.
Agreement among attorneys of record is all
that is typically required.
Notwithstanding the benefits of ESPs,
some case attorneys may refuse to embrace
electronic service. This does not have to derail
the possibility of introducing an ESP into a litigation. The nonstipulating parties can serve
and be served by traditional means while the
consenting parties serve one another through
the ESP. Arrangements can be made to upload
documents served by nonparticipants into
the online system to maintain a complete
electronic case file.
Selecting an ESP
Unless a court has entered into a contract with
an ESP, selecting a commercial provider is generally left in the hands of counsel to determine
on a case-by-case basis. ESPs differ significantly in terms of design, document management, advanced features, and access control. Although ESPs have been in existence for
a number of years, new entrants are attracting the attention of judges and attorneys with
their streamlined interfaces and suite of
advanced functionality. In this developing
marketplace, an ESP used by an attorney in
one case may no longer be the best option for
the attorney’s next proceeding.
When evaluating an ESP, attorneys should
consider a variety of factors. For design,
attorneys should investigate:
• Structure: Does the ESP display all of the
cases that it hosts—whether or not a user is
related to a particular proceeding? Or does it
employ a targeted approach, linking passwords to cases and displaying only matters in
which the attorney is involved?
• Ease of use: Is the application interface
intuitive, or is it cluttered and confusing?
Are cases and records easy to find? How
many screens, drop-down menus, and fields
must be navigated to complete basic tasks
such as locating and serving documents?
• Complex cases: In consolidated, coordinated, related, and other grouped matters, can
individual proceedings be isolated from other
cases?
• Supported browsers: Is the ESP system
designed to fully support Internet Explorer as
well as other PC and Macintosh browsers?
• Online help: Are help guides or pop-up
instructions readily available?
For document management, attorneys
should question an ESP regarding:
• Case files: Are documents organized in
table fields, folders and subfolders, or in some
other type of structure? Does the ESP organize documents in more than one way?
• Customization: Is the online case file tailored
to the jurisdiction, or is it one-size-fits-all? Can
the case file be customized to meet the requests
of counsel in a particular proceeding?
• Timing: Is the document immediately available to counsel upon transmission through the
service interface, or is access delayed until the
document is manually posted by the ESP? If
real-time access is not available, does the
ESP guarantee posting within a specified
period?
• Categorization: Does the ESP categorize
documents? Or is categorization in the online
system dependent on selections made by the
serving party? If the former, is a lawyer or
trained legal professional employed by the
ESP to correctly categorize documents in the
online case file? If the latter, how straightforward is the user’s selection decision, and
what safeguards exist (if any) to correct mistakes and oversights from becoming a permanent part of the online record?
• Document grouping: Are related documents—such as all documents related to a
motion or discovery request and responses—
grouped together in the online system for
easy retrieval?
• Search fields and filters: Can the case file be
searched by party, firm, document type, date
range, title, page length, document size, and
other variables? Are filters available for combination searches?
• Key words: Does the ESP support key word
searches? If so, are searches limited to document titles or can all or part of the online case
file be queried for records containing specified internal text?
• Party identification: Are document listings
color-coded or otherwise distinguished by
party type?
• Encryption: Is encryption technology used
to secure the transmission of documents to
and from the ESP?
• Offline access: Can case documents be
exported to a desktop or laptop for offline
access? If so, can multiple or all case records
be exported in a single transmission or must
records be downloaded individually?
• Sale of case documents: Does the ESP take
the documents served through its system and
make them available for sale to third parties?
For advanced features, attorneys should
research whether the ESP’s offerings include:
• Message boards: Does the ESP have a casespecific message board? If so, can messages be
limited to counsel only or will every posting
also be made available automatically to the
judge?
• Calendars: Does the ESP have one or more
calendars? If a calendar function exists, can
it be exported to Microsoft Outlook or other
calendaring systems? Can reminder e-mail
of calendar events be set up by individual
users?
• Deposition libraries: Does the ESP have a
deposition library? If so, can access be limited
to particular users?
For access control, attorneys should
inquire whether the ESP is structured to
address:
• Document restriction: Can document service and access be restricted to certain organizations or individuals?
• Roles: Can a user role be limited? For
example, can an expert be provided access to
specific deposition transcripts while blocking
access to the rest of the case file?
Los Angeles Lawyer June 2007 15
There is no substitute for experience.
■
■
■
■
Over 1,200 Successful Mediations
13 years as a full-time mediator
92% of Cases Resolved
Director, Pepperdine Law School’s
“Mediating the Litigated Case” program
LEE JAY BERMAN, Mediator
213.383.0438 www.LeeJayBerman.com
• Parties and third-party agents: Will the
ESP provide access to parties as well as their
consultants and experts upon request? If so,
is the online case file easy to locate?
• Administrative changes: Does the ESP
require a firm designee to make administrative changes or may each user request a
change?
Some of this information may be available
on an ESP’s Web site or through a discussion
with an ESP representative. Nevertheless, the
best method of evaluating a commercial
provider’s capabilities is to request a demonstration. The small amount of time devoted
to researching ESP alternatives before making a decision will likely pay dividends at
every login.
Widespread adoption of electronic service
in federal court proceedings and a patchwork of rules mandating or permitting e-service in state courts have modified the flow of
paper documents among counsel in litigation.
ESPs take these changes to the next level.
Much more than vehicles for serving documents, ESPs can function effectively as case
management centers. For courts and counsel, managing litigation through the Internet
has never made more sense.
■
1
CODE CIV. PROC. §1010.6(b) provides that “[b]y
January 1, 2003, the Judicial Council shall adopt uniform rules for the electronic filing and service of documents in the trial courts of the state, which shall
include statewide policies on vendor contracts, privacy,
and access to public records.” The “uniform rules”
adopted by the Judicial Council for this purpose are
found in Rules 2.250 through 2.260 of the California
Rules of Court.
2 CAL. R. OF CT. 2.260(a). Additional authority for electronic service by consent is found in local rules. See,
e.g., L.A. SUP. CT. R. 18.0(g).
3 CAL. R. OF CT. 2.253(a).
4 San Francisco Superior Court Amended General
Order No. 158, rev’d effective Nov. 1, 2006 (Case No.
828684).
5 Construction defect cases in San Diego Superior
Court are designated as Electronic Filing (EFile) cases
and generally are governed by a form Electronic Filing
and Service Order.
6 Contra Costa Superior Court Electronic Case File
Standing Order, as amended effective Dec. 15, 2006,
at §XII.
7 CAL. R. OF CT. 2.260(b)(1).
8 CAL. R. OF CT. 2.260(b)(2). The two-day extension
does not apply to 1) a notice of intent to move for a
new trial, 2) a notice of intent to move to vacate the
judgment under Code of Civil Procedure §663a, or 3)
a notice of appeal. See CAL. R. OF CT. 2.260(b)(3).
9 FED. R. CIV. P. 5(b)(2)(D) (“Service under Rule 5(a)
is made by: Delivering a copy by any other means,
including electronic means, consented to in writing by
the person being served….”).
10 See, e.g., United States District Court, Central
District of California General Order No. 06-07, at
§§II(G), III(C).
11 Communication between court and counsel on a
message board does not raise ex parte concerns if all
case attorneys receive the text of the postings.
12 http://pacer.psc.uscourts.gov.
16 Los Angeles Lawyer June 2007
practice tips
BY DOMINIQUE R. SHELTON
RICHARD EWING
How Licensing Issues Are Affecting Recent Media Developments
“THE ARTS ARE THE SALT OF THE EARTH; as salt relates to food, the
arts relate to technology.”1 Johann Wolfgang von Goethe’s words
reveal a centuries-old recognition of the symbiosis between the arts
and technology. Today, mp3 players, streaming video, video on
demand, and other new products and services have revolutionized the
way that consumers access and experience entertainment. These new
media have also renewed the tension between technical innovators and
the creators of artistic content.
Consider that the original Star Trek television series was first
released in 1966 on a single platform—television. In 2007, one of the
original Star Trek episodes, “Where No Man Has Gone Before,” is
featured on iTunes for $1.99 and can be viewed on multiple platforms
ranging from computers to iPods.2 Episodes of numerous other programs first broadcast on network television are now available on cell
phones,3 as is other general programming (e.g., sports, entertainment,
news, weather, and gambling).4 For example, Webcasts of sporting
events have become prevalent.5 And consumers are increasingly
viewing feature films on platforms other than traditional movie theater screens, such as DVDs, cable on demand services, and subscription film distribution channels. Consumers can also now download motion pictures to laptop computers via iTunes or access them
through online streaming video.
In addition to passive observation, consumers are now able to
manipulate characters and plot scenarios to create their own entertainment content. For example, in the fall of 2006, video game
maker THQ released The Sopranos: Road to Respect, a video game
based upon HBO’s series that allows consumers to “play” certain
scenes from the perspective of various series characters.6 Motion
pictures are likewise being transformed into immersive-experience
video games. For example, Midway Games Inc., an interactive entertainment industry publisher, and developer Tigon Studios, founded
by Vin Diesel, announced a collaboration with Viacom’s MTV Films,
Paramount Pictures, and MTV Games to develop a game tied to a
forthcoming film, The Wheelman, starring Diesel.7 In a role reversal
reflecting the popularity of video games, television shows inspired by
video games are now in development.8 The platforms on which
video games can be played have expanded from manufacturer-based
products (e.g., Xbox, Sony Play Station, PC Games, Nintendo Wii,
Game Boy, etc.) to cable services, the Internet, and cell phones.9
This expansion has heightened awareness of a number of licensing issues. Does the right to distribute entertainment content through
one channel include the right to distribute that content through a laterdeveloped channel with a different underlying technology? Must a
licensing agreement explicitly grant such a right? When is a new platform sufficiently similar to a preexisting platform so that the right to
distribute on the latter includes the former? Are there any limits on
a grant of the right to distribute content on all channels, including
those that have yet to be invented?
Legislators and the courts are grappling with these questions.
Senators Dianne Feinstein, Lindsey Graham, and Bill Frist intro-
duced SB 2644, the Platform Equality and Remedies for Rights
Holders in Music Act of 2006 (Perform Act), which focuses on
licensing and content protection issues related to the delivery of digital music over the Internet, satellite radio, and cable television. One
month later, in May, copyright owners filed two major lawsuits
(Atlantic Recording Corporation v. XM Satellite Radio, Inc. and
Twentieth Century Fox Film Corporation v. Cablevision Systems
Corporation) involving the interpretation of intellectual property
licenses.10 To date, however, only a handful of courts have issued decisions interpreting the scope of certain licenses in this context.11
Video Pipeline and Tasini
Under federal copyright law, copyright owners enjoy the exclusive right
to 1) make copies of their works, 2) prepare derivative works, 3) distribute their works, 4) perform their works, and 5) display their
protected material.12 Copyright owners can transfer one or all of these
rights via a license. Historically, judicial interpretation of licensing
agreements has been primarily a question of contract law. However,
interpreting the scope of the rights transferred has been complicated
by the advent of new media. For example, a Webcaster or satellite radio
Dominique R. Shelton is litigation counsel at Kaye Scholer and a member of
the firm’s Entertainment & Media Practice Group.
Los Angeles Lawyer June 2007 17
company may or may not have the statutory
right to operate an mp3 service that permits
subscribers to download recordings. If a cable
company retransmits network broadcasts as
part of a statutory license, that license may or
may not also permit the cable operator to
develop a digital recording service that converts programs to digital format for delayed
retransmission to cable subscribers on
demand.
At times when relatively few distribution
channels existed, courts held that licensees
could distribute content in any media that reasonably fell within the medium specified in the
license unless the parties could show a contrary intent.13 For example, most courts have
broadly interpreted the phrase “motion picture” to include television broadcasts and
home video distribution.14 Also, in the early
1980s, several courts concluded that when
parties expressly contracted to permit distribution of film content “by any means or
methods now or hereafter known,” this
included distribution via videocassette (a
technology developed after the dates of the
licensing agreements).15 Similarly, when a
licensor is aware of emerging technologies that
reasonably fall within the meaning of a contract term referencing a particular medium
and the licensor does not expressly exclude
those new uses, courts have often held that the
license encompasses those new technologies.16 However, these prior cases do not
address the question of whether an existing
license can be read to include new technologies that are neither invented at the time of
the license nor addressed in the license but
that are, arguably, functionally indistinguishable from the uses expressly permitted
by the license.
Relatively few cases address whether a
party exceeds the scope of an existing license
by changing the platform or the technology
used to distribute the content that is covered
by the license. In Video Pipeline, Inc. v. Buena
Vista Home Entertainment, Inc.,17 a 2003
decision, a New Jersey district court held
that a licensee exceeded the scope of an existing license that permitted the exhibition and
physical copying of video trailers in stores,
when the licensee made the same clips available online. Video Pipeline, the licensee, was
in the business of obtaining trailers and promotional materials from various movie studios. It organized these clips into video compilations and sold them to home video
wholesalers and retailers for in-store customer viewing to promote home video rentals
and sales.
Then, in 1988, Video Pipeline entered
into a licensing agreement with Buena Vista
Home Entertainment to include Buena Vista’s
trailers in these compilations. In the licensing
agreement, Buena Vista conferred on Video
18 Los Angeles Lawyer June 2007
Pipeline a limited right to reproduce and
“perform” the trailers.18
Nine years later, in 1997, Video Pipeline
notified Buena Vista that it intended to make
the trailers available online. Video Pipeline’s
online service became active in 1999. By that
time, Video Pipeline had converted Buena
Vista’s videotape trailers “into digital form,
and made them available for the public on its
websites, and on the websites of subscribers”
of Video Pipeline’s online service. Buena Vista
never gave express authorization for the
online use of its trailers; however, the record
reflected that Buena Vista was fully aware of
Video Pipeline’s plans and conduct.19
In 2000, Buena Vista told Video Pipeline
that it was not authorized to use Buena Vista’s
trailers online and terminated the licensing
agreement. Video Pipeline sought declaratory relief. Buena Vista counterclaimed for
copyright infringement, alleging that Video
Pipeline had exceeded the scope of its license
by placing the trailers online. The New Jersey
district court agreed with Buena Vista. It held
that digitized copies of Buena Vista’s trailers
were derivative works under the Copyright
Act. Because Buena Vista explicitly told Video
Pipeline in 2000 that it was not authorized to
make digitized copies of Buena Vista’s trailers, Video Pipeline’s continued online use of
the digitized trailers constituted copyright
infringement.20
The court also found that Video Pipeline’s
conduct—streaming video over the Internet—
constituted a public performance in violation of Buena Vista’s exclusive rights under the
Copyright Act. The court rejected any claim
of implied license based upon the parties’
course of conduct. Notwithstanding the
expense that Video Pipeline incurred in converting the trailers for online use, and despite
Buena Vista’s silence between 1997 and 1999
while the trailers were being converted to
digital format, there is no discussion of Video
Pipeline’s detrimental reliance on Buena
Vista’s failure to object to the digital online
conversion process. The court’s decision in
Video Pipeline, which was affirmed on appeal,
thus reflects some judicial reticence to interpret licensing agreements broadly to include
new technologies that were not expressly
contemplated by the parties or mentioned in
the licensing agreement.
A few decisions involving the publishing
industry also evidence a judicial preference for
narrow construction of licensing agreements
insofar as they relate to new technologies. In
Random House, Inc. v. Rosetta Books LLC,21
for example, a publisher argued that its right
to reproduce text “in book form” included the
right to reproduce the books online, such
that the author could not separately license
the online rights to a so-called e-book publisher. The district court concluded that the
publisher had not established a likelihood of
success on the merits and denied the publisher’s request for a preliminary injunction.
The Second Circuit found no abuse of discretion by the district court.22 Similarly, in
New York Times Company v. Tasini,23 the
U.S. Supreme Court narrowly construed a
license for the reproduction of news articles.
In that case, freelance authors contributed
articles to newspaper and periodical publishers. The court found that the publishers
had the right to reproduce and distribute the
articles “as part of [a] collective work,” but
that they had exceeded the scope of their
copyright by making the articles available
online via Lexis without the authors’ consent.24 On Lexis, for example, New York
Times articles were searchable by author,
title, and date, among other things.25 The
Supreme Court held that making the articles
available online and searchable constituted
copyright infringement, as the New York
Times only had a copyright in the “collective
work as a whole” and not the individual
articles.26
Video Pipeline, Rossetta Books, and Tasini
all suggest that a licensee’s failure to expressly
obtain rights to use new media can expose the
company to copyright infringement claims
and all the adverse consequences such claims
entail.27
Cablevision and XM Radio
Two pending cases in the U.S. District Court
for the Southern District of New York highlight the current licensing debate: Twentieth
Century Fox Film Corporation v. Cablevision
Systems Corporation 28 and Atlantic
Recording Corporation v. XM Satellite
Radio, Inc.29 Although these two cases are
pending, they are noteworthy for their potential effect on licensing law in the new media
context and as illustrations of the ways in
which litigants frame these issues for the
courts.
In the Cablevision action, the plaintiffs, a
group of television and film studios, allege one
cause of action—copyright infringement—
based upon Cablevision’s proposed service
called remote storage digital video recording
or RS-DVR. In the complaint, the studios
allege that RS-DVR is “an unauthorized
video-on-demand service that would undermine the video-on-demand, download, mobile
device, and other novel and traditional services that plaintiffs and other copyright owners have developed and are actively licensing
into the marketplace.”30 The crux of the studios’ claim is that Cablevision does not have
a license to permit delayed transmission and
digitized copying of “linear programming” on
cable.31 The studios argue that if Cablevision
wants to offer customers the opportunity to
record programming at will, it must negoti-
ate video-on-demand licenses to do so.
Cablevision counterclaimed for declaratory relief, asserting that its RS-DVR product
is merely a “time-shifting” device protected
under the U.S. Supreme Court’s Sony
Corporation of America v. Universal City
Studios, Inc.32 Cablevision also alleges that its
RS-DVR product is no different from the
“set top” digital video recording boxes that
it currently installs in customers’ homes and
to which the studios have never objected.
The only difference between RS-DVR and
the set top DVR boxes, Cablevision argues,
is the location of the stored subscriber programs. In the case of the set top boxes, the
recordings are saved within the digital video
recording box located in the customer’s home.
In the case of the proposed RS-DVR product,
the programs are saved on a remote server
operated by Cablevision. Both devices allow
the same number of programs to be saved.
The plaintiffs moved for summary judgment, with heavy reliance on the proposition that new technologies transform the
scope of intellectual property rights. Specifically, the studios argued that Cablevision’s RSDVR service would directly infringe upon
the studios’ exclusive rights to reproduce and
perform their copyrighted material, in part
because the technology used by Cablevision
would create unauthorized “buffer” (or temporary) copies that would reside on Cablevision’s remote server. The studios likewise
argued that Cablevision’s creation of an intricate remote server system for the sole purpose
of making multiple copies of the same program for numerous subscribers is the hallmark
of copyright infringement:
Cablevision would utilize an array of
more than a dozen different computer
servers, switches, routers, and other
devices. All that equipment would be
owned, maintained and programmed
by Cablevision. All that equipment,
except the set top box, would be
located at Cablevision’s facilities. The
sole purpose of virtually all that equipment would be to provide the Service.33
Relying on the Supreme Court’s decision
in Tasini, the plaintiff studios argued that “a
license confers only the copyright rights specifically granted and no others,” and therefore
the court should find that new technologies—
like RS-DVR—require new licenses.34 Citing
Video Pipeline, the studios further argue that
just as streaming programming over the
Internet constituted an unauthorized public
performance in Video Pipeline, the Southern
District of New York should conclude that
Cablevision’s proposal to “stream” programming to subscribers is an unauthorized
use.35 Interestingly, the studios relied on
Tasini—and not on Video Pipeline—for the
broader proposition that a negotiated license
only includes technologies expressly identified
in the license and not new media that become
available after the date of the license. Even
though Video Pipeline could also be read to
stand for this proposition, the studios used
Video Pipeline to support the narrower
proposition that Cablevision’s RS-DVR service would require Cablevision to create “two
streams” of transmissions, namely, a simultaneous broadcast stream for which
Cablevision presently pays licensing fees and
an unauthorized on-demand stream for RSDVR transmissions for which Cablevision
apparently contemplates no licensing fees.36
In contrast, Cablevision’s summary judgment brief downplays the effect of new technology on licensing rights. First, Cablevision
argued that it is merely providing the
“machinery” for the subscribers to use, similar to a copying machine. Second, Cablevision argued that the new technology does
not actually expand what it is indisputably
licensed to do, since subscribers already have
the ability to view simultaneous broadcasts in
a delayed, time-shifting manner by using the
set top digital video recording boxes that are
installed in homes. In addition, Cablevision
pointed out that the technology of RS-DVR
permits only the private viewing of the content by the subscriber at home, because the
encryption process ties a subscriber’s request
for a program to that subscriber’s personal set
top device. Thus, Cablevision argued that
there is no public performance by either
Cablevision or the subscriber in the ultimate
privacy of the subscriber’s home.37
In a decision dated March 22, 2007, the
U.S. District Court for the Southern District
of New York adopted the arguments
advanced by the studios and dismissed
Cablevision’s counterclaim with prejudice.38
A similar case, Atlantic Recording
Corporation v. XM Satellite Radio, Inc., filed
10 days before Cablevision, addresses whether
storing music obtained through the XM satellite radio service in a portable device constitutes infringement. The XM case involves
the recording industry’s allegations that XM’s
so-called Inno device (marketed as an XMplus-mp3 service) exceeds the scope of the
statutory license for the digital transmission
of sound recordings and actually transforms
XM’s service into a download distribution service similar to iTunes. The plaintiffs assert
direct and indirect copyright infringement
theories. Although the XM subscribers themselves are not sued, the plaintiffs also allege
that XM is contributing to copyright infringement by its subscribers. As in Cablevision,
XM characterizes its Inno product as a timeshifting device protected by the doctrine of fair
use. XM likens the Inno device to consumers’
historic practice of making cassette recordings
of music played on their favorite radio sta-
tions: “XM subscribers have no ability to
choose what XM plays or, therefore, what
songs they can record.” At issue is whether
XM broadcasters will have to pay more for
licensing fees in order to incorporate the new
digital recording technology that permits customers to disaggregate playlists for a fee.39
The Perform Act
If recent legislative initiatives are any indication, licenses will be strictly construed to
encourage negotiation of separate licenses
for new media. The Perform Act clearly targets technology such as XM’s Inno and makes
plain that companies like XM are not permitted to market digital recording devices.
Feinstein has indicated that the Perform Act
does two things:
1. It creates rate parity for all service
providers under the compulsory
license.…This means that Internet,
cable, and satellite will all be subject to
the same rate standards; and
2. It requires that Internet, cable, and
satellite providers employ technology
that will prevent downloading, manipulation and sorting of the music that
they play to prevent individuals from
creating their own personalized playlists.
The bill has been referred to the Committee
on the Judiciary.40 If the Perform Act becomes
law, it will resolve many future questions
regarding the digital distribution of music
but would leave open questions pertaining to
cable and other media platforms. New legislative initiatives will undoubtedly continue
to emerge to address the multiple platforms
available for the distribution of entertainment content.
In this rapidly shifting landscape, lawyers
can counsel clients to consider the licensing
issues that follow at all stages of new media
development and launch.
Explicitly address the technology/new
media issues in the license. If a client desires
the media to be restricted, carefully describe
the medium in which the content may be
distributed and explicitly exclude other
known media as well as unknown future
technologies. If the client desires to have the
broadest rights possible, negotiate a license
that includes “any means or methods now or
hereafter known” or comparable language.
Avoid assuming liability for technological
functions beyond the client’s control. Lawyers
should counsel clients to avoid assuming
responsibility for tasks that are dictated by the
technology at hand. By way of example, a digital cable channel that receives programming
content from third-party producers should not
guarantee removal or refresh dates for that
content if those functions are ultimately outside the control of the cable channel.
Los Angeles Lawyer June 2007 19
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20 Los Angeles Lawyer June 2007
Consider requiring representations and
warranties that business partners are complying with the law. In the Video Pipeline
case, several other online distributors of home
video products had links to Video Pipeline’s
Web site on their own home pages. Although
none of these distributors were sued for direct
or indirect copyright infringement, they
arguably had exposure.41 To limit potential
future liability and to have a better understanding of a business partner’s intellectual
property management procedures, it is advisable to include in licensing agreements representations that the licensor has fully complied with copyright laws and has fully cleared
the rights and title to content provided to
the licensee. An indemnity provision for any
liability arising from the licensor’s failure to
comply with the law would also be advantageous from the licensee’s perspective.
When representing a licensor, consider
language that would specify that new technologies and platforms will change the substantive rights at issue in the license. A licensor should consider including express
language in a licensing agreement making
plain that new technologies or platforms (not
yet in existence at the time of the licensing
agreement) would be considered outside the
scope of the agreement.
Agree to limit the legal impact of technological advances and new platforms if your
client is a licensee that would like to have
broad rights to expand the use of content to
new media. A licensee that seeks as much
flexibility as possible in using content might
push for language in the licensing agreement
that makes clear that technological advances
and new media are envisioned by the agreement. If possible, the licensee will want
express permission to exploit the content
using new media or technological advances
that are not identified or in existence at the
time of the licensing agreement.
Defining principles that cut across technologies are needed to establish guidelines for
copyright owners and prospective licensees in
the area of new media. There are some indications that Congress may legislate in this
arena. Until new rules are developed, however,
lawyers will continue to grapple with finding
the right balance between promoting technological advances while protecting creative
content.
■
1
2 J OHANN W OLFGANG V ON G OETHE , W ILHELM
MEISTER’S TRAVELS, ch. 7 (1829).
2 See http://www.apple.com/itunes/store/tvshows.html
(last visited Jan. 6, 2007). In 2005, NBC Universal and
Apple announced a partnership to offer television
shows on iTunes. See NBC Universal & Apple Offer
New Primetime, Cable, Late-Night & Classic TV
Shows on the iTunes Music Store, available at
http://www.apple.com/pr/library/2005/dec/06nbc.html
(last visited May 18, 2006). MGM has made episodes
of Stargate available on iTunes.
3
In 2005, The Walt Disney Company and Warner
Bros. announced the development of “mobi-toons,”
episodes of children’s programming, like Sesame Street,
available for download on cell phones. See Doreen
Carvajal, A Way to Calm Fussy Baby: “Sesame Street”
by Cellphone, available at http://www.nytimes.com. See
also Laura M. Holson, Verizon to Announce Plan for
TV Shows on Cellphones, N.Y. TIMES, Jan. 6, 2007.
Beginning in 2004, books were available for download
on phones. See David Harper, Creative Commons
Licensed Library Launches—Delivering Mobile
Editions of Books to Phones, Wireless Ink Blog, at
http://winksite.com (last visited June 12, 2006). In
addition, digital radio has now been proposed for
mobile phones.
4 In 2006, British Sky Broadcasting and Symbian
Limited announced a partnership to provide a range of
content, including sports, entertainment, news, weather,
and betting on cell phones. See BSkyB Selects Symbian
OS to Develop Sky by Mobile, at www.symbian.com
(Feb. 14, 2006).
5 See, e.g., Nancy Armour, Thinking in and outside the
Slingbox, at http://www.insidesocal.com (last visited
Mar. 15, 2007) (“Sports that have been largely shut out
of the mainstream media are using Webcasts to stake
out their spot. The NHL even is putting full-length
games on delay on Google Video.”). Webcasts of lessviewed sports are also becoming more prevalent. See,
e.g., IceNetwork.com.
6 Anne Becker, Cable and Broadcast Take Aim at a $16
Billion Business, Broadcasting and Cable, at
http://www.broadcastingcable.com (June 12, 2006)
[hereinafter Cable and Broadcast Take Aim]. The
Sopranos is not the only television series to enter the
gaming arena. Fox’s 24 series also was transformed into
a video game. Ubisoft and Touchstone Television are
working to adapt the television series Lost to a video
game.
7 Id.
8 Gameplay HD (a Dish Network channel) is working
with video game suppliers to secure content rights for
a machinima series in which animators will use video
game content and technology to create digital episodes
of a television series. Machinima is a production technique and film genre in which low-end 3D technology
often used for video games is used for film or television.
9 Cablevision launched the industry’s first interactive
subscription games service, iO Games, in 2004, and has
announced plans to expand its service in partnership
with game provider PixelPlay. See Cable and Broadcast
Take Aim, supra note 6. In-Fusio and Microsoft have
partnered to produce mobile content based on popular Xbox titles. Mike Magee, In-Fusio to Produce
Halo Content for Mobile Phones, at http://www
.theinquirer.net (Sept. 27, 2005) (last visited June 16,
2006).
10 See Atlantic Recording Corp. v. XM Satellite Radio,
Inc., Case No. 06-CV-3733 (S.D. N.Y. filed May 16,
2006), and Twentieth Century Fox Film Corp. v.
Cablevision Sys. Corp., Case No. 06-CV-3990 (S.D.
N.Y. filed May 24, 2006).
11 The general rules of contract interpretation ordinarily
apply to the interpretation of licenses. See, e.g., Cohen
v. Paramount Pictures Corp., 845 F. 2d 851, 854 (9th
Cir. 1988) (declining to interpret a license for exhibition “by means of television” to include home video
because home video technology did not exist at the time
of contracting).
12 17 U.S.C. §106.
13 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER
ON COPYRIGHT §10.10[B] (2006).
14 See, e.g., Bartsch v. Metro-Goldwyn-Mayer, Inc., 391
F. 2d 150, 155 (2d Cir. 1968).
15 See, e.g., Platinum Record Co., Inc. v. Lucasfilm, Ltd.,
566 F. Supp. 226 (D. N.J. 1983). This case concerned
a 1973 licensing agreement that expressly conferred the
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Los Angeles Lawyer June 2007 21
right to “exhibit, distribute, exploit, market and perform said motion picture, its air, screen and television
trailers, perpetually throughout the world by any
means or methods now or hereafter known.” Id. at 227
(emphasis added). In 1980, a Universal affiliate released
the film for sale and rent on videocassettes. Id. The
plaintiffs brought suit, alleging that the agreement did
not cover videocassettes. The district court granted
summary judgment in favor of the defendants. Id. at
228. See also Rooney v. Columbia Pictures Indus.,
Inc., 538 F. Supp. 211 (S.D. N.Y. 1982), aff’d, 714 F.
2d 117 (2d Cir. 1982), cert. denied, 460 U.S. 1084
(1983), in which the court held that language in a
licensing agreement giving the right to defendants to distribute a film “by any present or future methods or
means,” and by “any other means now known or
unknown” encompassed distribution via videocassette, even though that technology was not in existence
when the licensing agreement was executed. Id. at
223, 228-29. The court stated: “The contracts in question gave defendants extremely broad rights in the
distribution and exhibition of [the] films, plainly intending that such rights would be without limitation unless
otherwise specified and further indicating that future
technological advances in methods of reproduction,
transmission and exhibition would inure to the benefit of defendants.” Id. at 228.
16 See, e.g., Landon v. Twentieth Century Fox Film
Corp., 384 F. Supp. 450, 454-55 (S.D. N.Y. 1974).
17 Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc.,
275 F. Supp. 2d 543 (D. N.J. 2003), aff’d, 342 F. 3d
191 (3d Cir. 2003).
18 Id. at 547-48.
19 Id. at 549-50.
20 Id. at 554.
21 Random House, Inc. v. Rosetta Books LLC, 283 F.
3d 490 (2d Cir. 2002).
22 Id.
at 491-92.
York Times Co. v. Tasini, 533 U.S. 483 (2001).
24 Id. at 489.
25 Id. at 490.
26 Id. at 496-97.
27 In 2006, Eminem settled a federal lawsuit that he initiated in Michigan against several Web vendors of
ring tones. Eminem’s complaint alleged copyright
infringement and violations of the Lanham Act based
upon the vendors’ sale of Eminem’s songs as ring tones
without his permission. See, e.g., Eight Mile Style,
LLC v. Cellus USA, Inc., Case No. 2:05cv73788 (E.D.
Mich. Oct. 4, 2005). Eminem’s attorneys have stated
that they intend to target distributors of karaoke renditions of Eminem’s tunes.
28 Twentieth Century Fox Film Corp. v. Cablevision Sys.
Corp., Case No. 06-CV-3990 (S.D. N.Y. filed May 24,
2006).
29 Atlantic Recording Corp. v. XM Satellite Radio,
Inc., Case No. 06-CV-3733 (S.D. N.Y. May 16, 2006).
30 Complaint at 2, Twentieth Century Fox Film Corp.,
Case No. 06-CV-3990.
31 “Linear programming” is described as including
programming on broadcast networks (i.e., ABC, CBS,
NBC), as well as basic cable and premium stations (i.e.,
HBO and Showtime). Plaintiffs’ Memorandum in
Support of Motion for Summary Judgment at 2 (Aug.
25, 2006), Twentieth Century Fox Film Corp., Case
No. 06-CV-3990 [hereinafter Memorandum in Support
of Motion for Summary Judgment].
32 Sony Corp. of Am. v. Universal City Studios, Inc., 464
U.S. 417 (1984) (holding that Sony betamax recorders
were “time-shifting” devices protected from copyright
infringement claims under the doctrine of fair use).
33 See Memorandum in Support of Motion for
Summary Judgment, supra note 31, at 4. See also 17
U.S.C. §106 (exclusive rights conferred on copyright
23 New
owners); 17 U.S.C. §111 (statutory licenses).
See Memorandum in Support of Motion for
Summary Judgment, supra note 31, at 7.
35 See Plaintiffs’ Opposition to Cablevision’s Motion
for Summary Judgment at 19 (Sept. 22, 2006),
Twentieth Century Fox Film Corp., Case No. 06-CV3990.
36 See Plaintiffs’ Reply Memorandum in Support of
Motion for Summary Judgment at 4 (Oct. 6, 2006), id.
37 See generally Cablevision’s Motion for Summary
Judgment (Aug. 25, 2006); Cablevision’s Reply in
Support of Motion for Summary Judgment (Oct. 6,
2006); and Cablevision’s Opposition to Plaintiffs’
Motion for Summary Judgment (Sept. 22, 2006), id.
38 Twentieth Century Fox Film Corp. v. Cablevision,
Opinion, Case No. 06-CV-3990 and 06-CV. 4092
(S.D. N.Y. Mar. 22, 2007).
39 XM filed a motion to dismiss the complaint, arguing that its Inno player was protected as a digital audio
recording device (DARD) under the Audio Home
Recording Act (AHRA). The Southern District of New
York rejected XM’s argument on the ground that the
AHRA only protects companies from infringement
claims pertaining to the distribution of DARDs. XM
was not being sued for the distribution of its Inno
device but rather the accompanying service that permitted consumers (for a fee) to disaggregate playlists.
The court found this distinction to be dispositive. In
addition, users of XM’s device had to be connected with
XM’s music service in order to maintain access to the
music files on their devices. See Memorandum and
Order, Atlantic Recording Corp. v. XM Satellite Radio,
Inc., Case No. 06-CV-3733 (S.D. N.Y. Jan. 19, 2007).
40 See Library of Congress Web site at http://thomas.loc
.gov (emphasis added).
41 5 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER
ON COPYRIGHT §23.02[A] (2006).
34
A wider perspective:
What the legal community expects from a law school devoted to the big picture.
Creative, versatile graduates with panoramic vision for
today’s complex legal challenges.
CALIFORN IA WESTERN
SCHOOL OF LAW
www.CaliforniaWestern.edu
22 Los Angeles Lawyer June 2007
San Diego
What law school ought to be.
SM
MCLE ARTICLE AND SELF-ASSESSMENT TEST
By reading this article and answering the accompanying test questions, you can earn one MCLE legal ethics credit.
To apply for credit, please follow the instructions on the test answer sheet on page 25.
by DIANE KARPMAN
Advice and
CONSENTS
The uncertain effectiveness of advance consents
is due, at least in part,
to a misunderstanding of
their purpose and use
FOR MORE THAN 30 YEARS, lawyers have been
grappling with California’s stringent rule governing advance consents1—frequently without success.2 Continuing legal education
courses, including the mandatory courses on ethics, have brought an
increased awareness of conflicts. Arguably, there are some cases in
which the interests of the clients are completely aligned. However, in
some instances, the mere passage of time can cause aligned interests
of clients to diverge. And perhaps because of the greater sensitivity
to conflicts engendered by the educational requirements, fewer and
fewer conflicts are being held to be unforeseeable. Thus, in California,
the issue often is not whether there is a consent, but how many are
there?3
The varied success in using advance consents is at least in part due
to lawyers misunderstanding their purpose and, therefore, their use.4
In addition to protecting clients’ interests, advance consents protect
lawyers from clients who have selective memories or unpredictably
play the conflicts card. They also help avoid a court’s “factual reconstruction”5 of the terms of the attorney-client relationship.
When representing multiple clients with potentially divergent
interests, advance consents, while sometimes fraught with problems,
can give lawyers a powerful tool and a modicum of control over future
events. Careful consideration of a number of guiding principles in
using, drafting, and executing consents will substantially increase the
likelihood that they will be enforced.
Some of these factors have already received judicial approval. They
include a consideration of the client’s status, the lawyer’s status, and
the scope and timing of the consent. However, the most important
element has been the degree of disclosure in the consent. Consents that
fail to consider the specifics of a given client, lawyer, and situation
are simply less sustainable.6 These blanket or open-ended consents
that are not specifically tied to particular events or circumstances purport to waive any conflicts that could arise at any time in the future.
Sometimes, they are buried in lengthy fee agreements. These consents
seldom comply with the disclosure goals of Rule 3-310 of the
California Rules of Professional Conduct or Rule 1.7 of the ABA
Model Rules of Professional Conduct.
Diane Karpman, of Karpman & Associates in Los Angeles, has been qualified
as a legal ethics expert in state and federal courts. Her practice focuses on
representing lawyers in ethics matters.
Los Angeles Lawyer June 2007 23
Client Status
The attorney-client relationship
is contractual. Once initiated, the
relationship imposes duties under
the law of agency and trusts10 in
addition to other laws relating
specifically to lawyers. In professional responsibility, although the retention agreement is characterized as being made at arm’s length, a presumption exists that the attorney-client relationship is one that manifests unequal bargaining
positions.11 This is in addition to the basic rule of construction,
which requires the fee agreement to be construed against the lawyer.12
Like any other type of agreement in which the parties have unequal
bargaining positions due to their position or understanding of information, the agreement can be reformed or voided. This presumption
of inequality is exacerbated by ethical rules that can create an unfair
situation for attorneys.
Against that backdrop, a detailed advance consent establishes
actual and accurate client expectations and can create and demonstrate equality in the relationship.13 For this reason alone, the judiciary should support robust consents because they illustrate the client’s thoughts at the time of the agreement rather than impressions
created years later.
The client’s status is key to determining the client’s reasonable
expectations. An agreement with someone deemed disadvantaged, such
as a minor or an intoxicated person, can be set aside because of a lack
of capacity. The emotional and intellectual capacity of the client, and
the possibility of manipulation by a coclient, are also important.14
For example, if a conflict arises between jointly represented clients,
24 Los Angeles Lawyer June 2007
Rule 3-700 and Model Rule 1.16 mandate the lawyer’s withdrawal
from the representation of both to comply with the duty of loyalty.
This occurs, for instance, when a longstanding corporate client wants
to provide for the joint defense of its own and its employee’s interests because of the company’s indemnification obligations or to be able
to control the defense. If withdrawal might otherwise be
required, the consent allows the
parties to allocate risk in
advance, and prevents the newer
client from denying the primary
client its long-trusted counsel.15
However, this issue is often driven by its context. An individual
client seeking justice in a marital
dissolution or criminal case will
rarely be deemed to have knowingly consented to sharing “his or
her” lawyer. 16 However, if a
lawyer is working for an insurance carrier in a tripartite relationship or representing a corporation or a class, the clients
reasonably expect to share the
loyalty of their counsel.17
When clients are experienced
consumers of legal services who
are reasonably informed and
independently counseled, there
is little reason to believe that they
are being taken advantage of by
their lawyers—and like others in
the marketplace, these clients
should be held to their bargains.
Thus, large companies can consent under circumstances in
which an individual might not
be allowed to do so. Sophisticated clients who are versed in
legal theories and routinely use
legal services are commonly held
to their promises.18 Part of the
determination, though, may be based upon the degree of risk in the
engagement. For instance, a minor lease for a Fortune 500 company
might justify the use of an advance consent, whereas the same
advance consent on the same lease might not be justified for a small,
closely held corporation.19
Major corporations have experienced in-house counsel to approve
and review proposed consents. These companies often attempt to dictate the terms of the retention and representation on a “take it or leave
it” basis. Often, these companies will require execution of their form
fee agreements, which contain lists of subsidiaries or other companies with whom they have strategic relationships, and whom the
lawyers agree not to represent or sue. Thus, the presumption of
unequal bargaining power is absent.20
Since these corporations employ teams of attorneys in specialized
areas, depending on the case, they may not expect any one attorney
to faithfully represent their interest in all the endeavors of a corporation and its subsidiaries. They are more likely to agree to an
advance consent for unrelated business matters, such as representation of employees in workers’ compensation matters adverse to the
company, insurance matters, or small contracts. Although some of the
titans of industry can be offended by proposed consents,21 the
Association of Corporate Counsel published an “info pak” on con-
RON OVERMYER
Rule 3-310(A) requires attorneys to inform their clients of the
events or facts that create or could result in a conflict, as well as the
reasonably foreseeable adverse consequences7 or the material risks.8
To fulfill that duty and obtain an informed consent, the client needs
sufficient information to be able to evaluate and consider fully the benefit and detriment of the proposed
consent in order to understand
what is being agreed to. The more
information that the client has,
the more likely that the consent
will be validated by the court.9 A
consent is tantamount to a contractual offer—and like any other
offer, its terms must be definite
and certain. Therefore, blanket
or open-ended consents often fail
to give clients enough information
to hold them to their promise.
Nevertheless, blanket consents
are routinely used to achieve a
variety of other objectives. They
educate consumers of legal services about how conflicts can
occur. For clients who have been
educated about conflicts, blanket
consents open the door to discussions if a potential conflict
ripens into an actual one. Finally,
blanket consents can be employed
to leverage client cooperation in
working out a problem, thereby
promoting the interests of all
clients in achieving the right to
counsel of their choice.
MCLE Test No. 160
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum
Continuing Legal Education legal ethics credit by the State Bar of California in the amount of 1 hour.
1. A lawyer who obtains a blanket consent from a client
does not have to obtain any other waiver from that
client.
True.
False.
2. The status of a client is irrelevant to consent validation.
True.
False.
3. Blanket consents are per se unethical.
True.
False.
4. Rule 3-310(A) of the California Rules of Professional
Conduct requires that the lawyer inform the client of
reasonably foreseeable consequences as well as the
facts and events that create the potential or actual conflict.
True.
False.
5. A consent is the same as an offer and must be definite and certain so that clients will understand what
they are agreeing to waive.
True.
False.
6. Absent an informed written consent, if a conflict
occurs in the multiple representation of joint venturers,
a lawyer must withdraw from the representation of all
the clients.
True.
False.
7. A waiver that is obtained after the inception of the
attorney-client relationship is an arm’s-length transaction.
True.
False.
8. Context is irrelevant in consent validation; a client
accused of criminal conduct is the same as a client who
is the member of a class action with 1,000 members.
True.
False.
9. If in-house counsel reviews a prospective consent for
a corporation, the consent is more likely to be validated.
True.
False.
10. An attorney should be cautious when representing
two or more clients in the same industry.
True.
False.
MCLE Answer Sheet #160
ADVICE AND CONSENTS
Name
Law Firm/Organization
11. Rule 3-310 is flexible, so a consent can be obtained
at anytime, even after the conflict has vested.
True.
False.
Address
12. Lawyers involved in a firm audition known as a
beauty contest cannot be subject to disqualification if
they are not retained.
True.
False.
Phone
13. A lawyer cannot represent a corporation and an
employee who are both defendants in a case.
True.
False.
14. A consent that contains the provisions of Rule 3-310
is a sufficient method of advising a client of the reasonably foreseeable consequences of a consent.
True.
False.
15. The fundamental paradigm of the Rules of
Professional Conduct is one lawyer serving one client.
True.
False.
16. Rule 3-310 permits clients to consent to any circumstance, including a lawyer being on both sides of
a litigation.
True.
False.
17. Consent counsel may be selected from the same firm
of the lawyer seeking the consent.
True.
False.
City
State/Zip
E-mail
State Bar #
INSTRUCTIONS FOR OBTAINING MCLE CREDITS
1. Study the MCLE article in this issue.
2. Answer the test questions opposite by marking
the appropriate boxes below. Each question
has only one answer. Photocopies of this
answer sheet may be submitted; however, this
form should not be enlarged or reduced.
3. Mail the answer sheet and the $15 testing fee
($20 for non-LACBA members) to:
Los Angeles Lawyer
MCLE Test
P.O. Box 55020
Los Angeles, CA 90055
Make checks payable to Los Angeles Lawyer.
4. Within six weeks, Los Angeles Lawyer will
return your test with the correct answers, a
rationale for the correct answers, and a
certificate verifying the MCLE credit you earned
through this self-assessment activity.
5. For future reference, please retain the MCLE
test materials returned to you.
ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
1.
■ True
■ False
2.
■ True
■ False
3.
■ True
■ False
18. Changing business relationships among corporations, such as mergers and acquisitions, can result in
a client-created conflict of interest.
True.
False.
4.
■ True
■ False
5.
■ True
■ False
6.
■ True
■ False
7.
■ True
■ False
8.
■ True
■ False
19. Clients are described as “poisoning the well” if they
distribute their conflicts throughout a legal community
to deprive their adversaries of the ability to retain
counsel of their choosing.
True.
False.
9.
■ True
■ False
10.
■ True
■ False
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
■ False
14.
■ True
■ False
15.
■ True
■ False
16.
■ True
■ False
17.
■ True
■ False
18.
■ True
■ False
19.
■ True
■ False
20.
■ True
■ False
20. An informed consent will prevent the client or the
court from engaging in “factual reconstruction.”
True.
False.
Los Angeles Lawyer June 2007 25
flicts that contains several pages on consents, indicating a level of acceptance among in-house corporate counsel.22
Some jurisdictions do not permit governmental organizations to
“consent” to a conflict of interest:23 “A governmental lawyer cannot
obtain the informed consent of the citizenry to the representation of
conflicting interests.”24 This concept is based on the appearance of
impropriety and public trust in the integrity of the judicial system. The
knee-jerk prohibition on governmental consents should be compared
with the concept of the “revolving door,” which allows former government lawyers to find employment in the private sector. Everyone
in society accepts the benefits and burdens of this practice. Therefore,
governments should be permitted to consent when proper circumstances are presented.
Lawyer Status
The enforceability of a consent is enhanced when it is needed because
of a lawyer’s special characteristics. A consent is appropriate when
a client seeks an attorney who specializes in a unique area of the law
or a boutique practice “in which conflicts between clients are frequent.”25 For instance, the concurrent representation of several
school districts,26 numerous airlines,27 or financial service providers28
can justify a consent in these niche practices. Even being recognized
for “aggressive” behavior may validate a consent.29 Hopefully, the
converse would be approved as well. Additionally, if the services of
a specific lawyer are unavailable in the marketplace without an
advance consent, the freedom of contract and right to choose one’s
own lawyer may trump any subsequent claims of duress.30
Advance consents may also be justified when the client is seeking
advice that, by its nature, will lead to a one-time retention. For
example, immigration or ethics cases, or even the representation of
financial institutions,31 can validate the use of a consent to future conflicts of interest.
California’s policy favoring client autonomy and decisional freedom in the area of consents is extremely strong. Indeed, the California
Supreme Court in Maxwell v. Superior Court32 held that an indigent,
criminal defendant in a capital case could grant full media rights to
his lawyers because the consent fully explained how the lawyers’ economic interest could conflict with the interests of the accused. The court
balanced the defendant’s right to counsel of his choice in a death
penalty case with counsel’s full and complete right to exploit the criminal’s story. During oral argument, counsel agreed that full and complete exploitation rights were tantamount to overreaching. Still, the
consent was deemed valid.
Scope of Consents
Overly broad and blanket consents are less sustainable, but generally
a consent that authorizes an anticipated event before it happens is justifiable. Broad, nonspecific consents substantiate claims of overreaching and predatory lawyering. For example, one consent relieved
“said Boone (the attorney) from all rights, burdens, obligations, and
privileges which appertain to his said employment, and consent[ed]
that said Boone may engage in services pro and con, as he may see
fit.”33 Although this is an historic example of a consent, similar consents are still being employed.
Broad, generic clauses in a fee agreement are more susceptible to
attack because they fail to satisfy the requirements of the rules and
are often employed without concern for client status. For example,
they are commonly hidden in the boilerplate of a standard fee agreement.34 Yet these broad sweeping clauses are being increasingly
employed in the profession, particularly by large law firms, although
the lawyers using them commonly found them difficult to obtain and
do not know whether they are enforceable.35
Simply put, broad clauses commonly fail to consider the reasonably foreseeable consequences36 involved with a specific client and a
28 Los Angeles Lawyer June 2007
specific representation. That argument alone may defeat a standard
form clause contained in an engagement letter.37
However, attorneys obtain broad consents—despite their dubious enforceability—to obtain leverage in neutralizing client objections should a conflict materialize.38 Nevertheless, attorneys have an
obligation to request additional consents as events occur and the contours of the relationship unfold.39 Indeed, in one well-known case
that applied the California consent rule,40 the court indicated that
a client’s consent to a potential conflict failed to protect the firm from
the actual conflict that evolved, although the clients were national
airline carriers with teams of in-house lawyers. An ABA ethics opinion, later withdrawn, stated, “Even though one might think that the
very purpose of the prospective waiver is to eliminate the need to
return to the client to secure a ‘present’ second waiver when what
was once an inchoate matter ripens into an immediate conflict,
there is no doubt that in many cases that is what will be ethically
required.”41
Although a standard form or blanket consent fails to satisfy the
requirement that the lawyer consider and explain the reasonably foreseeable consequences,42 “California law does not require that every
possible consequence of a conflict be disclosed for the consent to
be valid.”43 Acts of war, or a contractual equivalent that cannot be
foreseen—such as frustration of purpose or impossibility of performance—would likely justify the absence of an explanation in a
consent.
By contrast, clauses that are limited to specific areas of practice,
scope of representation, and time periods are easier for courts to
approve.44 For instance, if a sophisticated client retains a firm for a
specific bankruptcy problem, then it is conceivable that the client will
understand a request to not disqualify the firm in other areas of
practice.
Details, Timing, and Confidential Information
Consents should be as detailed as possible. They should provide the
identity of the existing client who may become adverse to the new
client.45 Often, the identity of the adverse client can be identified by
the type of business involved, if not by name. In describing the conflict, two primary fiduciary duties may be implicated: loyalty and confidentiality.46 Clients have the right to fully understand when the performance of those duties is impaired. A robust consent describes the
specific duty and the impairment that could occur.
When “the attorney’s loyalty, i.e., independent judgment” is
impaired, a disclosure might contain advice to seek independent
counsel to review the consent.47 “Consent counsel” should be truly
independent—not a suite mate or friend of the attorney seeking the
consent—and chosen by the client. The recommendation to seek
independent counsel is the aspect of the consent that is important, not
whether that advice was heeded. Indeed, a client’s failure to follow
the advice can establish that the consent was voluntarily given.
The most important aspect of any advance consent is the full,
unvarnished explanation of the potential or actual conflict. While laying out these details may make lawyers and clients squeamish, complete transparency will avoid claims of the lawyer taking advantage
of a client by overreaching or “snatching” a consent because of
greed or other improper motives.48
According to Rule 3-310, a lawyer faced with a conflict must not
accept or continue a representation without obtaining an informed
written consent. The timing of the consent can demonstrate duress,
or its absence. Thus, advice to seek independent counsel necessarily
implies a reasonable opportunity, under the circumstances, to obtain
it. The rule of thumb is three or four business days.
The reasonableness of that opportunity may bolster the enforceability of the consent. Obviously, a client’s alternatives are more
limited on the eve of trial than before commencing litigation. Therefore,
a request for consent should be made at the earliest opportunity to
avoid the delay being characterized as sinister in a subsequent motion
for disqualification—or in a suit for malpractice.
A consent creates an engagement of limited scope—for example,
“We represent you only in this aspect of your bankruptcy, and you
agree not to conflict us out of other litigation extrinsic to that matter.” Therefore, lawyers should include in the consent a clause warning the client to be circumspect in disclosing other extraneous confidential information. Beware, however, that the client’s inability to
disclose information—or the insecurity in doing so—can interfere with
the competent representation of less sophisticated parties. Therefore,
the inadvertent transmission of confidential information should be
anticipated in the agreement, perhaps by a provision for ethical
walls, even when a client is warned and agrees not to disclose collateral,
confidential information.49
The problem of confidential disclosures commonly arises in a
joint venture when the parties consult a lawyer who has represented
one of the parties in the past. Identifying and confirming in writing
who is and is not the client is crucial. If the lawyer wants to maintain the longstanding client relationship, a consent agreed to by all
other participants is wise. The lawyer may condition his or her
engagement by the other joint venturers on their agreement to waive
the right to disqualify the lawyer in subsequent adverse representations:50 “California courts have long recognized that a lawyer may
represent an interest adverse to a client in a matter directly related
to the lawyer’s prior representation of the client ‘where the client
expressly or impliedly consents to the adverse representation.’”51
Common Scenarios
A number of situations exist that, by nature, make an advance consent not only necessary but also easier for the prospective client to
accept. Lawyers should consider employing an advance consent in these
circumstances.
Corporate mergers and acquisitions give rise to a host of possible conflicts. Suddenly, through no fault of a lawyer or his or her firm,
the firm may realize it is on both sides of a deal. The client may create the conflict and so should easily understand the need for a consent.52 Numerous ethics opinions address the scenario of parents and
subsidiaries53 and allow lawyers to continue the representation if a
blameless client and lawyer, due to some accidental circumstances, are
at risk for having their ongoing relationship dissolved by the court.
Even intricate conflict-checking systems can fail to uncover related
party conflicts or those that seem facially unconnected.
The merger mania among corporations is mirrored in legal practice. Megafirms are a rapidly growing legal phenomenon, and conflict clearing is mandated before serious discussion regarding law firm
mergers begins. Not only would client identity need to be disclosed
but also matter status, client goals, objectives, and strategy. In this
instance, obtaining an advance consent from clients should be relatively easy, because conglomerate clients with developed law departments hopefully understand that law firms merge just as other types
of businesses do.
Lawyer “beauty contests” also pose substantial risks. When
potential clients are shopping for representation, they must disclose
confidential information to a firm to allow it to evaluate the clients’
work. However, that disclosure could taint the firms under consideration. An advance consent in these circumstances should be understood and accepted as a condition of participating in these contests.
Advance consents can also assist in the identification of the client
in a case of joint venturers as well as promoters of a new corporation or enterprise. The advance consent can effectively deny a participant in the new endeavor the claim of “clienthood.”54
Some Los Angeles firms refuse to allow attorneys to conduct initial client interviews and require paralegals to first obtain advance consents before discussing any matter with prospective clients. This is particularly common for lawyers in niche practices—such as family law,
antitrust, and intellectual property. Since firms can be tainted from
conversations with potential clients, a putative but disingenuous
client can attempt to poison the well and prevent a particular lawyer
from representing an adversary.
Positional conflicts—those that arise due to a client’s ideology or
business goals—are often the subject of advance consents. Obtaining
a client’s consent to having taken a different position in the past or
to taking an opposing position in the future may seem unnecessary
in Anglo-American jurisprudence.55 However, some enterprises—
particularly financial institutions and insurance carriers—require
Drafting Effective Advance Consents
While sample forms are helpful, they cannot replace carefully drafted advance consents that are appropriately tailored to the facts and clients
at issue. To enhance the likelihood that an advance consent will be enforced, attorneys should follow several principles.
✒ Be as specific as possible. This is because a court ruling on a consent will make a fact-specific inquiry. Use the parties’ actual names
in lieu of Client #1 and Client #2. Detail precisely what is being agreed to.
✒ Limit the breadth of the consent. A consent is more likely to be rejected if it is unnecessarily broad.
✒ Restrict the consent’s temporal scope.1 A consent applicable to a particular case is more likely to be enforced than one that blithely
frees a firm from its fiduciary duties forever. A periodic, fresh consent is also helpful, since the passage of time in disqualification motions
is significant and can be determinative.
✒ Have a substantive, detailed conversation with the client about what the consent means. A complicated or substantial consent without an explanation is less valuable than one that has been completely explained to the client.
✒ Explain the nature of the anticipated conflicts and the areas of conflict that cannot be foreseen, the effect of those conflicts, and how
the consent changes the representation regarding the duties of loyalty and confidentiality.
✒ Consider the sophistication of the client.
✒ Think about the interests of justice and obligations to the client. Too great a departure from these interests and obligations will result
in a consent that will not be enforced, even if it is properly detailed, explained, and agreed to.
✒ Give the client instructions on what is expected regarding the client’s actions in light of the consent. Tell the client to evaluate the sit—D.K.
uation, perhaps consult with independent counsel, and respond within a designated number of days.—
1 Concat
LP v. Unilever PLC, 350 F. Supp. 2d 796 (N.D. Cal. 2004).
Los Angeles Lawyer June 2007 29
that their counsel never assume a position
adverse to their side of a particular controversy
or legal theory. Informing a client at the beginning of representation via an advance consent serves an educational purpose. These consents should be supported by clients and courts.
When lawyers become familiar with the
concept of consents, they may overreact and
request consents when they are unnecessary,
as an ounce of prevention. Lawyers will be
overly inclusive and may perceive a conflict
where none exists. This overly cautious behavior can backfire. For example, in a disqualification motion or malpractice litigation, the
mere fact that some members of a firm were
murmuring about the possibility of a conflict
could be construed as evidence that a conflict
existed. Attorneys have been prosecuted by
the State Bar for requesting consents, because
the request can be deemed as an acknowledgment of a problem, whether that analysis
was accurate or not.
Ultimately, deciding whether an advance
consent is necessary should be based on the
foreseeability and waivability of the conflicts that may arise. Advance consents can
stave off problems that otherwise might be
insurmountable after a conflict has arisen. ■
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30 Los Angeles Lawyer June 2007
1 The terms “consent” and “waiver” are often, and
incorrectly, used interchangeably. A consent is an
agreement by a client before a triggering event. A
waiver is broader and involves the relinquishment of
a right before or after an event.
2 See CAL. RULES OF PROF’L CONDUCT R. 3-310, which
requires an “informed written consent” for most cases.
Rule 3-310(B) only requires a written disclosure if the
attorney had a relationship with a party or witness in
the matter involving the attorney’s current client.
Arguably, there are some situations in which the interests of the parties are aligned, and therefore a conflict
is highly unlikely.
3 CAL. RULES OF PROF’L CONDUCT R. 3-310(C), Official
Discussion: “Moreover, if the potential adversity should
become actual, the member must obtain a further
informed written consent of the clients pursuant to paragraph (C)(2).” See also Goss Graphics Sys., Inc. v.
Man Roland Druckmaschinen Aktiengesellschaft, 139
F. Supp. 2d 1040 (N.D. Iowa 2001) (With two advance
consents, the firm was disqualified based on the court’s
determination that the narrower and later consent was
controlling.).
4 The American Bar Association’s Ethics 2000 amendments to the Model Rules of Professional Conduct
have endorsed the use of informed written consents, and
many states have followed suit to the extent they did
not already permit them.
5 Charles W. Wolfram, Former Client Conflicts, 10 GEO.
J. LEGAL ETHICS 677 (1997).
6 Blanket consents are not per se unethical. State Bar of
California, Standing Committee on Professional Responsibility & Conduct, Formal Op. No. 1989-115.
7 CAL. RULES OF PROF’L CONDUCT R. 3-310(A).
8 ABA MODEL RULES OF PROF’L CONDUCT R. 1.7 [22].
9 Id.
10 STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS
OF LAW & ETHICS 20 (5th ed. 1998).
11 RAFAEL CHODOS, THE LAW OF FIDUCIARY DUTIES 34
(2000).
12 CIV. CODE §1654.
13 This result is consistent with the validation of an
attorney-client relationship, which is determined according to the reasonable expectations of the client. Ronald
Friedman, The Creation of the Attorney-Client
Relationship: An Emerging View, 22 CAL. W. L. REV.
209 (1986).
14 This can occur in situations involving an “accommodation client”—someone a preexisting client requests
the attorney to represent concurrently. Cases involving
the joint representation of a company and its employee
are examples. See Los Angeles County Bar Association,
Professional Responsibility & Ethics Committee,
Formal Op. No. 471 (Conflicts of Interest—Informed
Consent), available at http://www.lacba.org/Files
/Main%20Folder/Documents/Files/Eth471%2012-21
-92.pdf. The concurrent representation of a defendant
corporation and its former CEO/CFO presents another
dilemma. See Rite Aid Corp. Sec. Litig., 139 F. Supp.
2d 649 (E.D. Pa. 2001); Zador Corp. v. Kwan, 31 Cal.
App. 4th 1285 (1995) (Two prior consents allowed firm
to continue representing company when divergent
interests developed that prohibited continued joint
representation of two defendants.).
15 Zador, 31 Cal. App. 4th 1285; Los Angeles County
Bar Association, Professional Responsibility and Ethics
Committee, Formal Op. No. 471 (employer/employee
concurrent representation). Some commentators consider California’s broad consent policy to be detrimental to clients’ well being. See, e.g., Theodore J.
Schneyer, Searching for New “Particles” in the Law of
Lawyering; Recent Developments in the Attribution of
“Clienthood,” 1 J. INST. STUDY LEGAL ETHICS 79 (1996);
Fred C. Zacharias, Waiving Conflicts of Interest, 108
YALE L. J. 407 (1998).
16 In some instances, the actual conflict will be judicially
deemed “unconsentable.” Klemm v. Superior Court, 75
Cal. App. 3d 893 (1977). Most authorities agree that
a lawyer cannot represent both sides of a litigation, and
so that situation is unconsentable. See MODEL RULES
OF PROF’L CONDUCT R. 1.7 (b)(3) and RESTATEMENT
(THIRD) OF LAW GOVERNING LAWYERS §122(2) (Client
Consent to a Conflict of Interest).
17 Schneyer, supra note 15.
18 A client’s motion to disqualify in the face of a consent is a revocation, or the exercise of a client’s unfettered right of discharge. Case law is evolving in situations in which elements of promissory estoppel or
detrimental reliance are present. RESTATEMENT (THIRD)
OF LAW GOVERNING LAWYERS §122 (Client Consent to
a Conflict of Interest). Waivers, however, are not unilateral, and one party’s revocation can have a significant
negative impact upon the right of innocent clients to
counsel of their choice. Arguably, a revocation because
of a “changed mind” can be addressed in an ex ante
waiver that articulates the process to be employed in that
circumstance. See D.C. Bar, Legal Ethics Committee, Op.
No. 317 (Nov. 2002), at http://www.dcbar.org
/for_lawyers/ethics/legal_ethics/opinions.cfm.
19 In small, closely held corporations, it is important to
give the equivalent of a Miranda warning to all concerned regarding the client’s identity, because the principals or owners often believe that they are the clients.
20 John Leubsdorf, Pluralizing the Attorney-Client
Relationship, 77 CORNELL L. REV. 825 (1992).
21 James Schaller, Waiving a Yellow Flag at Prospective
Waivers, LEGAL TIMES, Mar. 12, 2001.
22 PETER JARVIS & MARK FUCILE, A CONFLICTS PRIMER
n.10 (2002).
23 See http://www.freivogelonconflicts.com/new
_page_38.htm#Governments.
24 2 RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL
MALPRACTICE 888 (2006).
25 CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 347
(1986).
26 Elliott v. McFarland Unified Sch. Dist., 165 Cal. App.
3d 562 (1985).
27
Blecher & Collins v. Northwest Airlines, 858 F.
Supp. 1442 (C.D. Cal. 1994).
28 Visa U.S.A. Inc. v. First Data Corp., 241 F. Supp. 2d
1100 (N.D. Cal. 2003).
29 Kennecott Copper Corp. v. Curtiss-Wright Corp.,
584 F. 2d 1195 (2d Cir. N.Y. 1978).
30 Elliott, 165 Cal. App. 3d 562.
31 Visa, 241 F. Supp. 2d 1100.
32 Maxwell v. Superior Court, 30 Cal. 3d 606 (1982).
33 Richard W. Painter, Advance Waiver of Conflicts, 13
GEO. J. LEGAL ETHICS 289, 293 (2000). See also In re
Boone, 83 F. 944 (1897).
34 SUSAN P. SHAPIRO, TANGLED LOYALTIES: CONFLICT OF
INTEREST IN LEGAL PRACTICE (2002).
35 Id. at 395; see also Kennecott Copper Corp. v.
Curtiss-Wright Corp., 584 F. 2d 1195 (2d Cir. 1978).
36 CAL. RULES OF PROF’L CONDUCT R. 3-310 (A); MODEL
RULES OF PROF’L CONDUCT R. 1.7 (“The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those
representations the greater the likelihood that the client
will have the requisite understanding.”).
37 Worldspan L.P. v. Sabre Group Holdings, Inc., 5 F.
Supp. 2d 1356 (N.D. Ga. 1998).
38 SHAPIRO, supra note 34, at 366.
39 Diane Karpman, Written Consents to Prospective
Conflicts of Interest, CAL. LAWYER, Dec. 1998.
40 Blecher & Collins v. Northwest Airlines, 858 F.
Supp. 1442 (C.D. Cal. 1994).
41 ABA Comm. on Ethics and Prof’l Responsibility, Op.
No. 93-372 (1993) (Waivers of Future Conflicts of
Interest) (withdrawn).
42 Foreseeable consequences encompass the benefits
and burdens of proceeding in a conflict.
43 Zador Corp. v. Kwan, 31 Cal. App. 4th 1285 (1995).
44 See MODEL RULES OF PROF’L CONDUCT R. 1.2(c).
45 Clearly, and initially, attorneys should obtain a consent from the first client to disclose its identity before
it is disclosed to the second client.
46 MALLEN & SMITH, supra note 24, at 599.
47 Id. at 617.
48 For a catalogue of the despicable claims that can be
asserted against lawyers who request and obtain consents, see Larry Fox, Forgeddabout Conflicts—If
Citibar Has Its Way, We Can Have Just One Big
Law Firm, 30 HOFSTRA L. REV. 717 (1999). For a
response to those claims, see Jonathan Lerner,
Honoring Choice by Consenting Adults: Prospective
Conflict Waivers as a Mature Solution to Ethical
Gamesmanship—A Response to Mr. Fox, 29 HOFSTRA
L. REV. 971 (2001).
49 See Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp.
2d 1100 (N.D. Cal. 2003) (holding that the consent was
sufficient to permit a firm to sue a present client on an
unrelated matter. The law firm erected an ethical wall
to prevent leaks regarding confidential information.).
50 Los Angeles County Bar Association, Professional
Responsibility and Ethics Committee, Formal Op. No.
471.
51 Id. at 4 (citing Grove v. Grove Value & Regulator
Co., 213 Cal. App. 2d 646, 652-53 (1963) (citing, in
turn, Lessing v. Gibbons, 6 Cal. App. 2d 598 (1935),
in which actress Dolores Del Rio unsuccessfully claimed
a conflict to decrease the fees owed to her attorney. The
court’s denial of Del Rio’s claim was based on an oral
consent to joint representation.)).
52 Gould, Inc. v. Mitsui Mining & Smelting Co., 738
F. Supp. 1121 (N.D. Ohio 1990).
53 See SHAPIRO, supra note 34, at 395.
54 Schneyer, supra note 15.
55 “The representation of clients does not constitute
endorsement of their political, social or moral beliefs
(ABA Model Rule 1.2).” Diane Karpman, An Ethics
Riddle in the Notorious “Torture Memo,” CAL. BAR
J., Feb. 2005.
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AN
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BY JEFFR
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pollution
BLOGOSPHERE
in
the
The only purpose of a new form of blog,
called a splog, is fraud and infringement
Jeffrey D. Goldman and Eric J. German are partners at Mitchell Silberberg & Knupp LLP and are member of the firm’s Intellectual Property &
Technology and Litigation departments. Goldman represents Perfect 10 in Perfect 10 v. Google, Inc., and Goldman and German represented
the plaintiffs in A&M Records, Inc. v. Napster, Inc.
32 Los Angeles Lawyer June 2007
AMANE KANEKO
O
f the many innovations spawned by the Internet, one of the most highly prized is the Web log, or blog. Some courts
have defined a blog benignly as “an online personal journal with reflections, comments, and often hyperlinks provided by the writer,”1 or a place “where users can post a chronological, up-to-date e-journal entry of their
thoughts.”2 Others have lauded blogs as a development worthy of Gutenberg: “The average computer blogger has,
in effect, his or her own printing press to reach the world.”3 Indeed, the U.S. Supreme Court has gushed that “[t]he
architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding [of the Republic].
Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means….”4
Following suit, the California Supreme Court recently conferred broad legal immunity on blogs that republish defamatory
statements, holding that “plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.”5 Another California court quashed a subpoena to a blog that had disseminated unpublished trade
secrets, characterizing the blogger as a journalist covered by the reporter’s shield law.6
Yet the privileged status conferred on blogs as a bastion of free speech ignores a metamorphosis that has occurred in recent
years. Blogs increasingly are profit-motivated endeavors rather than homespun forums giving voice to the voiceless.7 And while
it is true that blogs make it easy for anyone to become a publisher, purchasing interesting or attractive original content is expensive, and creating it is time-consuming and still requires old-fashioned hard work. As the number of blogs increases and the com-
petition for traffic (and the advertising dollars that follow) heats up, many blogs are
increasingly relying on infringement of thirdparty copyrights and trademarks in order to
attract interest and gain a following.
As a result, much of what appears on
blogs today is recycled, or simply stolen,
from established competitors that spend
money to create appealing content. Indeed,
there now is an entirely new form of blog—
known derisively as a splog—that is not really
a blog at all. A splog’s entire raison d’etre is
fraud and infringement—and it serves no
conceivable, legitimate, societal function
whatsoever.
Blogs may victimize copyright and trademark owners in all sorts of ways. At the simplest level, a blog might repeatedly republish
the key portions (if not the entirety) of the
most recent and newsworthy articles from an
owner’s Web site. To avoid charges of blatant,
naked infringement, the blog might accompany the copied text with a smattering of
superficial commentary about the news—
original, perhaps, but banal. Blogs often try
to stave off criticism of such tactics by linking to an original article coupled with a halfhearted disclaimer like “be sure to read the
whole article.” Even with this type of recommendation, copying the owner’s copyrighted material is probably not fair use, at
least under the traditional view.8 But the
practice is so widespread, and so often
cloaked under the guise of “commentary,”
that few clients will have the resources or
interest to test the issue.9 Clients may view this
conduct as irritating but not worth litigating,
thus perpetuating the practice.
The Process of Framing
However, some blogs may not stop there.
They may seek to punch up bland prose by
pilfering images and sounds from other sites—
including videos, photographs, and audio.
By the simple technological process called
framing, images and sounds on a copyright
and trademark owner’s Web site can easily
and seamlessly be incorporated into a blog’s
own presentation. Framing, also known as inline linking, “occurs when one webpage displays the content of another webpage within
its own borders.…The purpose of framing is
to create a single seamless presentation that
integrates the content of the two webpages
into what appears to be a single webpage.”10
Unauthorized framing is sometimes called
(and is more accurately viewed as) stealing
bandwidth. When a blog frames material
from another site, the material, while it
appears to be part of the blog, technically continues to reside at the other site—which continues to bear the costs to maintain the material on its servers (and to display it to the
blog’s customers). While copyright and
34 Los Angeles Lawyer June 2007
trademark owners can take technological
steps to encrypt their videos or otherwise
make framing difficult, this may also make it
impossible for some visitors to the owners’
sites to view their videos. And if pirate clips
pop up on video-sharing sites such as
YouTube.com—practically inevitable after
copyrighted or trademarked content is broadcast on television—owners will be helpless
to prevent blogs from incorporating these
clips into their own sites.
One might assume that framing another’s
copyrighted material, especially infringing
copies of the material, would be prima facie
unlawful. But courts—often wary about
standing in the way of perceived technological advancement—have not always agreed,
and the state of the law in this area is far from
certain. For example, in Kelly v. Arriba Soft
Corporation,11 a professional photographer
sued a search engine, arguing that the search
engine’s linking to and framing of the photographer’s copyrighted images constituted
copyright infringement. The Ninth Circuit
initially ruled that the framing was infringing,
holding that “Arriba actively participated in
displaying Kelly’s images by trolling the web,
finding [the plaintiff’s] images, and then having its program inline link and frame those
images within its own web site.”12 The court
later withdrew that portion of the opinion for
procedural reasons.13
In Perfect 10 v. Google, Inc.,14 another case
involving a display of copyrighted photographs
by Internet search engines, the district court
held that framing was not direct copyright
infringement, because “the website on which
content is stored and by which it is served
directly to a user, not the website that [frames]
it, is the website that ‘displays’ [and ‘distributes’] the content.”15 The court reached this
conclusion even though the material being
framed was itself infringing. The issue has
been briefed and argued to the Ninth Circuit,
and a decision is expected soon.
By contrast, in Live Nation Motor Sports,
Inc. v. Davis,16 a promoter and producer of
motorcycle racing events sued the operator of
a Web site that provided links to real-time
audio Webcasts of its events, asserting claims
for, inter alia, copyright infringement. Unlike
a typical hyperlink that simply takes a user to
a new Web site, links to real-time audio
Webcasts can play the recorded content without displaying a new Web page. Although the
defendant argued that he should not be held
liable because he merely provided “the same
audio webcast link freely distributed by [the
plaintiff] and thousands of individuals upon
thousands of websites worldwide,”17 the
plaintiff claimed that the link impeded the
plaintiff’s ability to sell sponsorships and
advertisements on its own Web site as the
“exclusive source” of the Webcasts. The court
agreed with the plaintiff and held that the
defendant’s “unauthorized ‘link’ to the live
webcasts that [the defendant] provides on
his website would likely qualify as [an infringing] display or performance of [the plaintiff’s] copyrightable material.”18
In Hard Rock Café International (USA)
Inc. v. Morton,19 a trademark holder sued the
operator of a licensed Web site for, inter alia,
offering a framed link to a third-party Web
site selling CDs, arguing that the license terms
prohibited the use of the licensed mark to sell
merchandise. The court suggested that when
framing is used in such a way that “it is not
clear to the computer user” that two different sites are being displayed simultaneously,
the framing Web site could be liable for trademark infringement or unfair competition.20
Contextual Advertising
This uncertain state of the law does little to
deter blogs from appropriating others’ content with impunity. Instead, the incentive for
blogs to appropriate content is only increasing with the expansion of the online advertising market, which is fueled in large part by
technology that allows even the most primitive Web site to earn advertising revenue. By
partnering with advertising companies such
as Google’s AdSense and Yahoo’s Overture,
any site can populate itself with advertisements that coincide with the subject matter
covered by the site. These advertisements are
referred to as contextual advertising.
The process works as follows: A Web site
operator that signs up with, say, Google’s
AdSense will “demarcate an area on his website that acts as a ‘placeholder’ for an advertisement. Google will then scan the text of his
website and populate or fill the placeholder
with advertisements it deems relevant to the
content on that site.”21 Every time a computer
user clicks on an ad (transporting the user to
the advertiser’s site), the advertiser pays a
fee to Google, which shares the fee with the
Web site on which the ad appeared. The
more relevant the ads that Google can deliver,
the more clicks those ads will get, and the
more money Google, and the Web site, will
earn. Contextual advertising has proven such
an ingenious way of matching advertisers
with potential customers that blogs that
attract tens of thousands of hits a day can earn
enormous revenue.22
As more and more blogs become supported financially by contextual advertisements, framing seems increasingly indefensible. It hardly seems fair for a blog to
incorporate content that was created by an
unrelated third party and display it at that
third party’s expense, while surrounding it
with contextual ads from which the blog
alone profits. This type of use of another’s
content is especially unfair when a blog’s
contextual ads are for the originator of the
content, or its competitors.
Consider, for example, a company that
produces live skateboarding events and a
Web site featuring a wealth of skateboarding
videos, articles, and merchandise. The company decides to partner with Google’s
AdSense to place ads on other skateboardrelated sites. Meanwhile, the company’s competitors are probably doing the same. A blog
about skateboarding is likely to receive contextual ads from Google for the company
and its competitors. When a visitor to the
skateboarding blog—who is attracted to the
blog by the company’s framed content—
clicks on one of the company’s contextual ads,
the company is forced to pay both Google and
the blog for a customer that rightfully belongs
to the company in the first place. Worse, if the
visitor clicks on an ad for one of the company’s competitors, thereby being transported
to the competitor’s site, the blog has used
the company’s content to misdirect a customer to the company’s competitor. Either
way, the company’s content is being misused
by the blog, without permission, to harm the
company.
Blogs can torment copyright and trademark owners in still more ways. A blog whose
primary purpose is earning money from contextual ads can only succeed if it is found by
lots of Internet users, whose clicks on ads generate the blog’s revenue. Having helped itself
to an owner’s copyrights to produce its content, the blog may also be tempted to use the
owner’s trademark and engage in other oftensleazy methods of search engine optimization to generate customer traffic.
Consumers typically discover new Web
sites through a search engine, “which allows
Internet users to locate Web sites that match
the ‘keywords,’ or search terms, they enter.”23
The leading search engines scan the domain
names and content of millions of Web sites,
seeking to provide search results ranked in
descending order of their relevance to the
user’s search terms. The contents that are
scanned include text that appears on the site,
visible to all, as well as metatags—hidden
computer code that, in theory, describes the
Web site or relates to its contents.24 A search
engine operating properly will deliver to a user
a list of links. The higher a Web site is ranked
on the list, the more traffic the Web site will
receive. While high page rankings presumably
result from heavy traffic to a site, it is equally
true that high page rankings also generate a
lot of traffic, which can, in turn, lead to significant revenue for a site populated with
contextual ads.25
These potential riches make search engines
obvious targets for manipulation. Experts in
search engine optimization have developed
tactics to raise a Web site’s page ranking in the
leading search engines. Though the precise
algorithms that search engines use to create
search results are closely guarded secrets,
common methods for obtaining high page
rankings include using a search term repeatedly in the text and metatags of a site, “scraping” (i.e., copying) prominent text from popular sites, and creating multiple related Web
sites whose only purpose is to provide links
to one another. The latter technique is effective because search engines often assume that
sites to which many other sites link must be
popular, meriting a high page ranking.26
Thus, a blog seeking to attract Internet
users searching for the skateboarding company may populate its site (and its metatags)
with repeated references not only to skateboarding but to the company itself and generous helpings of text from the company’s site.
Search engine users searching for the company
may find the blog ranked above the company’s own site and gravitate there. If the users
find their way back to the company’s site by
clicking on one of the company’s ads, the
company will get charged for the privilege.
Many courts take a dim view of these
forms of search engine optimization, branding them as trademark infringement27 and
techniques leading to “initial interest confusion.”28 For example, in Brookfield Communications, Inc. v. West Coast Entertainment
Corporation,29 an entertainment industry
information provider sued a video rental
store chain, asserting trademark infringement and unfair competition based on, inter
alia, the chain’s use of the plaintiff ’s
MovieBuff trademark in the domain name of
the chain’s Web site and in the Web site’s
metatags. The Ninth Circuit held that the
defendant’s use was likely to result in initial
interest confusion. Web surfers looking for the
plaintiff’s MovieBuff products may be led
by a search engine to the defendant’s Web site
and might decide that the information provided at the defendant’s Web site was sufficient. “Although there is no source confusion
in the sense that consumers know they are
patronizing [the defendant] rather than [the
plaintiff], there is nevertheless initial interest confusion in the sense that, by
using…‘MovieBuff’ to divert people looking
for ‘MovieBuff’ to its web site, [the defendant] improperly benefits from the goodwill
that Brookfield developed in its mark.”30
Once again, however, the fair use defense
may provide a blog with room to argue that
its use of a company’s name was for the purpose of engaging in legitimate criticism or
comparative advertising.31 Savvy blogs may
cloak their metatags in the language of fair
use—such as presenting their sites as commentaries on the companies whose content
Los Angeles Lawyer June 2007 35
they appropriate—and by doing so may try
to manufacture a First Amendment defense
where none properly applies. Meanwhile,
the search engines cannot discern the difference between copyright or trademark infringement and protected commentary or comparative advertising. Of course, if disclaimers
are pretextual, courts can disregard them.32
But clients may be reluctant to litigate what
appear to be close calls, especially when they
invariably will be characterized as trying to
stifle free speech.
Going after Splogs
Nonetheless, clients should have no such
reluctance in pursuing a splog. A splog is
strictly in the business of copyright and trademark infringement. It uses all the tricks that
blogs use to generate traffic and make money
while dispensing with the burden of providing any sort of fresh, useful content. Indeed,
a splog is not really a blog at all. It is, rather,
a form of Internet spam that mimics the look
of a blog by lifting chunks of text from other
sites and pasting them together, often with the
aid of automated software and usually resulting in haphazard, nonsensical prose. Like a
real blog, the splog will surround this text
with links to sister sites to gain higher page
rankings on search engines as well as contextual ads to earn money from clicks.33 It
may also use a domain name (or multiple
ones) designed solely to trick search engines
into assigning them high page rankings. A
very long domain name consisting of a lot of
likely search terms separated by dashes is a
good clue that the site in question is a splog.34
The content of a splog is meaningless,
but the splogger does not actually expect
anyone to read it. The text is there only to
attain high page rankings on search engines
and thereby draw in unsuspecting consumers,
who will then be induced to click on the
seemingly endless supply of links the splog
provides. Indeed, these sites are also referred
to as link farms. Each successive click on
these links—which are often misleadingly
titled—will further raise the splog’s page
ranking while dragging the baffled consumer
into a tangled web of interconnected sister
sites from which there is no escape short of
closing the browser. Eventually, the consumer
will likely click on a real advertiser-supported
link, generating revenue for the splog.
Consumers who are provoked to run this
gauntlet may be momentarily puzzled. They
may even, eventually, reach what they perceive
to be an appropriate destination—albeit not
the one they originally sought, and only after
inadvertently boosting the splog’s page ranking and probably putting a little more money
in the splog operator’s pocket.
Hon. Lawrence W. Crispo
(Ret.)
Mediator
Arbitrator
Referee
213-926-6665
www.judgecrispo.com
36 Los Angeles Lawyer June 2007
Clients plagued by a splog (or by any
competitive Web site that uses underhanded
search optimization techniques to siphon the
clients’ Web traffic) may find that when their
name is typed into a search engine, the splog
pops up on the very first page of the search
results, sometimes even above the clients’
own Web site. Every potential customer that
is deceived into visiting the splog instead of
the clients’ site may be diverted to a competitor whose contextual advertisements
appear on the splog or may only get to the
clients’ site after the clients are forced to pay
the splog for the referral. Either way, the
clients have been wronged.
For now, splogs generally are only stealing text, not images or videos. But in the
future, as search engines develop technologies
to locate and index visual content, splogs
will no doubt find it beneficial to purloin
those as well in order to increase their page
rankings.
Splogs are a growing threat. One source
reports that over half of all active English-language blogs are, in fact, splogs.35 To date,
while reported litigation against blogs is rare,
reported litigation against splogs is nonexistent. But as the stakes get higher and the
number of splogs continues to increase, litigation against them is inevitable. Depending
on the precise nature of the splog in question,
copyright, trademark, or unfair competition
law may provide an effective legal remedy, but
bringing a splog to justice undoubtedly will
present different challenges than mounting an
offensive against a traditional blog that has
crossed the line.
Other forms of Internet traffic usurpers,
such as traditional blogs or cybersquatters,
sometimes attempt to disguise their illicit
motives by posing as a fan site or information
location tool, or by providing a modicum of
commentary, criticism, or other marginally
relevant information. In contrast, splogs make
no pretense of being forums for First
Amendment activity. Once judges understand
the nature of a splog—and this is not necessarily an easy concept to convey—all claims
of fair use should fail. Determining where a
splog originates, however, is likely to be difficult. Splogs, more so than legitimate blogs,
may take pains to disguise their location and
the identity of their owners, thereby frustrating enforcement efforts for all but the
most sophisticated and determined clients.
Seeking the assistance of the leading search
engines may offer a remedy, but they may
have conflicting motives, including benefiting
from the placement of contextual ads. While
search engines have competitive reasons to
want their search results to be as accurate and
helpful as possible—a goal with which splogs
plainly interfere—if they are also in the business of placing contextual ads, they earn
money every time a consumer is diverted to
a splog and clicks on the ads found there. A
search engine that does nothing but direct
consumers to the Web site for which they
are searching may be performing a public
service, but it is not earning any money.
Ultimately, the same courts who have
lauded the Internet in general, and blogs in
particular, as a new public square will be
required to intervene. And they will be forced
to recognize that many contemporary blogs,
and all splogs, are not pillars of free speech
but business enterprises dependent on
infringement for their survival and success. ■
Anita Rae Shapiro
SUPERIOR COURT COMMISSIONER, RET.
PRIVATE DISPUTE RESOLUTION
PROBATE, CIVIL, FAMILY LAW
PROBATE EXPERT WITNESS
TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649
E-MAIL: [email protected]
http://adr-shapiro.com
1
McCabe v. Basham, 450 F. Supp. 2d 916, 925 n.4
(N.D. Iowa 2006) (quoting M ERRIAM -W EBSTER ’ S
COLLEGIATE DICTIONARY (11th ed. 2005)).
2 In re Stevens, 119 Cal. App. 4th 1228, 1236 n.3
(2004) (quoting JENSEN, NETLINGO: THE INTERNET
DICTIONARY (1995-2004)).
3 Id. at 1236 (quoting Vo v. City of Garden Grove, 115
Cal. App. 4th 425, 453 (2004)).
4 Reno v. American Civil Liberties Union, 521 U.S. 844,
870 (1997).
5 Barrett v. Rosenthal, 40 Cal. 4th 33, 40 (2006). The
decision relied on an expansive interpretation of the
Communications Decency Act of 1996 (CDA), 47
U.S.C. § 230(c)(1), equating individuals who repost false
statements with passive “service providers” such as
AOL, as well as the policy argument that “subjecting
Internet service providers and users to defamation liability would tend to chill online speech.” Id. at 56. The
Court did note, “At some point, active involvement in
the creation of a defamatory Internet posting would
expose a defendant to liability as an original source.”
But “[b]ecause Rosenthal made no changes in the article she republished on the newsgroups, we need not consider when that line is crossed.” Id. at 60 n.19.
6 O’Grady v. Superior Court, 139 Cal. App. 4th 1423,
1456-79 (2006).
7 Indeed, the O’Grady court “avoided the term ‘blog’
here because of its rapidly evolving and currently
amorphous meaning….It is at least arguable that [the
defendants], by virtue of their multiple staff members
and other factors, are less properly considered blogs
than they are ‘e-magazines,’ ‘ezines,’ or ‘webzines.’” Id.
at 1463 n.21.
8 Fair use is an affirmative defense that considers four
nonexclusive factors: 1) the purpose and character of the
use, 2) the nature of the copyrighted work, 3) the amount
and substantiality of the use, and 4) the effect of the use
upon the potential market for or value of the copyrighted work. 17 U.S.C. §107. See, e.g., Salinger v.
Random House, Inc., 811 F. 2d 90, 99 (2d Cir. 1987)
(not fair use to excerpt author’s unpublished letters in
the defendant’s book if the excerpts “are at least an
important ingredient of the book” and “make the book
worth reading”); see also Twin Peaks Prods., Inc. v.
Publications Int’l, Ltd., 996 F. 2d 1366 (2d Cir. 1993).
9 See New Era Publ’ns Int’l, ApS v. Carol Publ’ns
Group, 904 F. 2d 152 (2d Cir. 1990) (use of quotations
from L. Ron Hubbard’s writings for purpose of criticizing Hubbard was fair use); Bill Graham Archives v.
Dorling Kindersley Ltd., 448 F. 3d 605 (2d Cir. 2006)
(small reproductions of rock band’s posters in book
about band was fair use).
10 Wells Fargo & Co. v. WhenU.com, Inc., 293 F.
Supp. 2d 734, 748-49 (E.D. Mich. 2003); see also
Hard Rock Café Int’l (USA) Inc. v. Morton, 1999 WL
717995, at *25 (S.D. N.Y. Nov. 19, 2003) (Through
framing, two Web sites are “combined together into a
single visual presentation.”).
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Los Angeles Lawyer June 2007 37
11 Kelly
(949) 388-0524
38 Los Angeles Lawyer June 2007
v. Arriba Soft Corp., 280 F. 3d 934 (9th Cir.
2002).
12 Id. at 947.
13 Kelly v. Arriba Soft Corp., 336 F. 3d 811, 822 (9th
Cir. 2003) (holding that district court should not have
reached the issue because “the parties did not move for
summary judgment as to copyright infringement of the
full-size images” and “Arriba had no opportunity to contest the prima facie case for infringement as to the fullsize images,” and remanding for further proceedings).
14 Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828
(C.D. Cal. 2006).
15 Id. at 843. The court left open the possibility that the
framing Web site could be liable for contributory or vicarious infringement. See, e.g., A&M Records, Inc. v.
Napster, Inc., 239 F. 3d 1004 (9th Cir. 2001). However,
under the court’s logic, these theories (which require
a direct infringement by a third party) would not be
viable against a blog that framed legitimate copies of
images or video from the plaintiff’s own Web site.
16 Live Nation Motor Sports, Inc. v. Davis, 2006 WL
3616983 (N.D. Tex. Dec. 12, 2006).
17 Id. at *3.
18 Id. at *4. See also Intellectual Reserve, Inc. v. Utah
Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 129295 (D. Utah 1999) (Web site that linked to infringing
copies of plaintiff’s work on other sites could be liable
for contributory infringement.).
19 Hard Rock Café Int’l (USA) Inc. v. Morton, 1999 WL
717995 (S.D. N.Y. Nov. 19, 2003).
20 Id. at *25 & n.16. Cf. Wells Fargo & Co. v. WhenU
.com, Inc., 293 F. Supp. 2d 734, 761 (E.D. Mich.
2003) (Pop-up ads that “partially overlap plaintiffs’ sites
on the computer screen” do not infringe the plaintiff’s marks because “it seems apparent to the user
that what is appearing on his or her screen are two distinct sources of material.”).
21 Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 834
& n.7 (C.D. Cal. 2006).
22 Charles C. Mann, Spam + Blogs = Trouble, WIRED
MAGAZINE, Sept. 2006, at 106 [hereinafter Mann].
23 Google Inc. v. American Blind & Wallpaper Factory,
Inc., 74 U.S.P.Q. 2d 1385, 1386 (N.D. Cal. Mar. 30,
2005).
24 Brookfield Communications, Inc. v. West Coast
Entm’t Corp., 174 F. 3d 1036, 1045 (9th Cir. 1999).
25 Mann, supra note 22.
26 Id. at 106-08.
27 If copyrighted text is used as a search engine optimization technique, a copyright infringement claim
would be an evident remedy as well.
28 See, e.g., Brookfield, 174 F. 3d at 1062-66; Horphag
Research Ltd. v. Pellegrini, 337 F. 3d 1036, 1041 (9th
Cir. 2003); TData, Inc. v. Aircraft Technical Publishers,
411 F. Supp. 2d 901, 904-12 (S.D. Ohio 2006) (conduct shows “nefarious” intent); see also Playboy Enters.,
Inc. v. Netscape Communications Corp., 354 F. 3d
1020 (9th Cir. 2004) (use of competitor’s trademark
to trigger paid advertisements on search engine constituted trademark infringement).
29 Brookfield, 174 F. 3d 1036.
30 Id. at 1062.
31 15 U.S.C. §1115(b)(4); Brookfield, 174 F. 3d at
1066; Faegre & Benson, LLP v. Purdy, 367 F. Supp.
2d 1238, 1246-47 (D. Minn. 2005).
32 Horphag, 337 F. 3d at 1041 (no fair use defense
where the defendant’s references to the plaintiff’s mark
“spawn confusion as to sponsorship and attempt to
appropriate the cachet of the trademark”); Faegre &
Benson, 367 F. Supp. 2d at 1247 (“[The defendant’s]
wholesale copying of some of [the plaintiff’s] description tags indicates an intent to mislead the internet user
rather than to merely categorize critical web pages.”).
33 Mann, supra note 22.
34 Id. at 112.
35 Id. at 106.
2007
to
referral
ADMINISTRATIVE LAW
LAW OFFICES OF MICHAEL GOCH, APC
5850 Canoga Avenue, Suite 400, Woodland Hills,
CA 91367, (818) 710-7190, fax (818) 710-7191,
e-mail: [email protected]. Web site: www
.michaelgoch.com. Contact Michael Goch.
Licensing and related disciplinary proceedings with
emphasis on health care practitioners, as well as
Department of Health Services matters and related
issues, from investigatory stage through trial and
writ proceedings.
ADOPTION—DOMESTIC, STEPPARENT, ADULT,
AND AGENCY
THE LAW OFFICES OF DAVID H. BAUM, APLC
16255 Ventura Boulevard, Suite 704, Encino, CA
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LAW OFFICES OF STEVEN W. LAZARUS
9841 Airport Boulevard, Suite 1200, Los Angeles,
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the Society of Assisted Reproduction Professionals.
He received his Bachelor of Arts degree from UCLA
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APPELLATE LAW
HONEY KESSLER AMADO
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HORVITZ & LEVY LLP
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BUSINESS LITIGATION
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Web site: www.knottglazier.com. Contact Steven
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against false advertising, unfair business practices
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protection under federal and state labor laws. The
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to uphold their right to be treated fairly and legally.
COMMERCIAL DEBT COLLECTION
LAW OFFICES OF RONALD P. SLATES, PC
523 West Sixth Street, Suite 502, Los Angeles, CA
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site: www.rslateslaw.com, or www.lawyers.com
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CONSTRUCTION TRIAL ATTORNEYS
CASTRO & ASSOCIATES
11766 Wilshire Boulevard, Suite 250, Los Angeles,
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e-mail: [email protected]. Contact Joel B.
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CRIMINAL LAW
PAUL L. GABBERT
2115 Main Street, Santa Monica, CA 90405, (310)
399-3259, fax (310) 392-9029, e-mail: PLGabbert
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Los Angeles Lawyer June 2007 39
Elder Law & Nursing Home
Abuse & Neglect
Law Offices of Steven Peck is seeking association or referrals for:
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LAW OFFICES OF ROBERT A. SCHWARTZ
11835 West Olympic Boulevard, Suite 1235 East,
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445-3574, e-mail: [email protected]. Web site:
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BOARD OF LEGAL SPECIALIZATION
TSOI AND ASSOCIATES, LAWYERS
TEL: 213-387-2888
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40 Los Angeles Lawyer June 2007
HUTTON & WILSON
1055 East Colorado Boulevard, Suite 310,
Pasadena, CA 91106, (626) 397-9700, fax (626)
397-9707, e-mail: [email protected]. Web site:
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Hutton & Wilson specialize in driving under the influence, vehicular manslaughter, DUI murder and
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LAW OFFICE OF JENNIFER L. KELLER
18500 Von Karman Avenue, Suite 560, Irvine, CA
92612, (949) 476-8700, fax (949) 476-0900, e-mail:
[email protected]. Contact Danielle Frederick.
Sophisticated criminal defense, state and federal,
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LAW OFFICES OF LAWRENCE WOLF
10390 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90025, (310) 277-1707, fax (310) 2771500, e-mail: [email protected]. Web site:
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LAW OFFICES OF GARRETT J. ZELEN
12400 Wilshire Boulevard, Suite 400, Los Angeles,
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LAW OFFICES OF ROCK O. KENDALL
28202 Cabot Road, Suite 300, Crown Cabot Financial Center, Laguna Niguel, CA 92677-1251, (949)
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EMPLOYEES WORKERS COMPENSATION
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GOODCHILD AND DUFFY PLC
16133 Ventura Boulevard, Suite 1250, Encino, CA
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Castillo. We handle workers’ compensation cases,
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regular issues. Referrals are handled in strict accordance with the State Bar Rules.
DUI
EMPLOYMENT LAW
LAW OFFICES OF LAWRENCE WOLF
10390 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90025, (310) 277-1707, fax (310) 2771500, e-mail: [email protected]. Web site:
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Our firm has rightfully earned the respect of judges,
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EMPLOYMENT TRIAL ATTORNEYS
12400 Wilshire Boulevard, Suite 810, Los Angeles,
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e-mail: [email protected]. Web site: www.
employmentattorneyservices.com. Contact Rodney Mesriani, Esq. Wrongful termination, age discrimination, race discrimination, disability discrimination, pregnancy discrimination, sex discrimination, sexual harassment, violation of whistle blowing
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ELDER LAW & NURSING ABUSE & NEGLECT
PREMIER LEGAL
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EMINENT DOMAIN
CALIFORNIA EMINENT DOMAIN LAW GROUP
3429 Ocean View Boulevard, Suite L, Glendale, CA
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Contact A. J. Hazarabedian. The attorneys at California Eminent Domain Law Group are California’s
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ENTITY FORMATION & MAINTENANCE
UNGERLAW, PC
1801 Century Park East, Suite 1250, Los Angeles,
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ESTATE PLANNING & TRUST AND ESTATE
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Los Angeles Lawyer June 2007 41
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Forfeiture
Defense
PAUL L. GABBERT
LAWYER
TEL (310) 399-3259
Main Street Law Building
2115 Main Street
Santa Monica, CA 90405
42 Los Angeles Lawyer June 2007
EXPERT WITNESS
PHILLIP FELDMAN, BS, MBA, JD, ABPLA, AV
15250 Ventura Boulevard, Suite 610, Sherman
Oaks, CA 91403-3287, (818) 986-9890, fax (818)
986-1757, e-mail: [email protected]. Web
site: www.legalmalpracticeexperts.com. Contact
Phillip Feldman. Board Certified in legal malpractice (CA, ABA), Former Judge Pro Tem, state bar
prosecutor, managing partner plaintiff’s and defense firms. LACBA 40 years, fee dispute arbitrator
30 years, author, and lecturer. Testifies on standard of care or conduct, fiduciary duties, causation/case within a case/underlying case on almost
any matter-transactional, litigation, family, commercial, contract, tort, any case-in any state or federal
court. Also State Bar Defense Counsel and preventative law.
FAMILY LAW
KOLODNY & ANTEAU
9100 Wilshire Boulevard, Ninth Floor-West Tower,
Beverly Hills, CA 90212, (310) 271-5533, fax (310)
271-3918. Web site: www.kolodny-anteau.com. Our
firm specializes in sophisticated and complex family law and matrimonial matters arising out of interpersonal relationships both domestically and
abroad. Our team of experienced and highly qualified family law attorneys offers additional services
relating to paternity, palimony, marital and domestic
torts, child abuse and child abduction.
LAW OFFICE OF LYNETTE BERG ROBE
12711 Ventura Boulevard, Suite 315, Studio City,
CA 91604, (818) 980-9964, fax (818) 980-7141,
e-mail: [email protected]. Contact Lynette Berg
Robe. Certified family law specialist. Family law litigation, mediation, collaborative law, domestic partnership, and estate planning.
FRANCHISE LAW
BARRY KURTZ, A PROFESSIONAL CORPORATION
16000 Ventura Boulevard, Suite 1000, Encino, CA
91436, (818) 728-9979, fax (818) 986-4474, e-mail:
[email protected]. Web site: www
.barrykurtzpc.com. Contact Barry Kurtz. Regulatory compliance, ownership, structuring and acquisitions and dispositions of franchisors and franchisees, with an emphasis on franchisors and franchisees in the restaurant business.
MOHAJERIAN LAW CORP
1925 Century Park East, Suite 350, Los Angeles,
CA 90067, (310) 556-3800, fax (310) 556-3817,
e-mail: [email protected]. Web site: www
.mohajerianlawcorp.com. Contact Al Mohajerian.
Mohajerian Law Corp. (MLC), is a multi-practice law
firm that proudly offers efficient, innovative, and
proactive legal services throughout the United
States. Our lawyers have extensive experience
within their respective practice areas; known for
their expertise and diligence in representing clients.
MLC proudly offers the following legal services to
our clients: franchise and distribution, employment
defense, intellectual property, litigation, and real estate law. MLC offers legal counseling, transactional
services, litigation defense and representation, and
a myriad of preventative, proactive legal services.
RODNEY R. HATTER & ASSOCIATES
1301 Dove Street, Suite 900, Newport Beach, CA
92660, (714) 384-6540, fax (714) 494-3448, Web
site: www.californiafranchiseattorney.com, e-mail:
[email protected]. Contact Rodney Hatter.
Assistance to prospective and existing franchisors
and franchises.
HEALTHCARE
CURTIS GREEN & FURMAN, LLP
140 South Lake Avenue, Suite 208, Pasadena, CA
91101, (626) 585-9800, fax (626) 585-4186, e-mail:
[email protected]. Web site: www.cgf.com. Contact Tom Curtis. Healthcare litigation; representation of physicians, physician organizations and
other licensed professionals; independent counsel
to medical staffs; licensing; disciplinary and peer
review proceedings; reimbursement issues.
LAW OFFICES OF MICHAEL GOCH, APC
5850 Canoga Avenue, Suite 400, Woodland Hills,
CA 91367, (818) 710-7190, fax (818) 710-7191,
e-mail: [email protected]. Web site: www
.michaelgoch.com. Contact Michael Goch. Licensing and related disciplinary proceedings with emphasis on healthcare practitioners, as well as Department of Health Services matters and related issues, from investigatory stage through trial and writ
proceedings.
IMMIGRATION AND NATIONALITY LAW
BONAPARTE LAW OFFICES
11911 San Vicente Boulevard, Suite 355, Los Angeles, CA 90049, (310) 471-3481, fax (310) 471-1686,
e-mail: [email protected]. Web site: www
.lawyers.com. Contact Ronald H. Bonaparte. Family and employment, temporary and permanent
visas, naturalization, representation in all administrative courts, handling immigration matters and all
federal courts, and expert witnesses in immigration
law for state court proceedings.
LAW OFFICES OF BRIAN D. LERNER, APC
249 East Ocean Boulevard, Suite 408, Long Beach,
CA 90802, (562) 495-0554, fax (562) 495-0519, South
Bay office located at 3460 Torrance Boulevard, Suite
302, Torrance, CA 90503, e-mail: attorney
@eimmigration.org. Web site: www.eimmigration
.org. Contact Brian D. Lerner. Attorney Certified
specialist in Immigration and Nationality Law. Firm
processes cases in every area of immigration.
Member of AILA. Admitted to the United States
Supreme Court. Admitted to the U.S. 11th, 9th, 8th,
6th, 5th, 4th, 3rd, 2nd, and 1st Circuits. We prepare
appeals for all immigration cases all over the U.S.
Firm has done only immigration cases for over 10
years. We prepare deportation/representation all
over the U.S. We prepare business and family
visas. Our firm has strong record of success. We
will give realistic and valid solutions for your immigration problems. Our firm handles the difficult
cases.
TSOI & ASSOCIATES, A LAW CORP.
3580 Wilshire Boulevard, Suite 720, Los Angeles,
CA 90010, (213) 387-2888, fax (213) 387-2882,
e-mail: [email protected]. Contact Victoria J.
Suh. Certified specialist immigration and nationality
law, State Bar of California Board of Legal Specialization. See display ad on page 40.
WOLFSDORF IMMIGRATION LAW GROUP
1416 2nd Street, Santa Monica, CA 90401, (310)
570-4088, fax (310) 570-4080, e-mail: visalaw
@wolfsdorf.com. Web site: www.wolfsdorf.com.
Contact Bernie Wolfsdorf. The lawyer’s “superstar,” Bernard Wolfsdorf is an attorney who clearly
“knows what he’s doing.” At the “cutting edge of
practice,” clients and lawyers alike hold him in the
highest regard. Chambers 2006 Global World’s
Leading Lawyers. Wolfsdorf is described as “increasingly considered a force to be reckoned with
on a national scale. Bernard Wolfsdorf is an “outstanding attorney” who is “highly regarded as an
expert in consular processing.” Chambers Global
Leading US Immigration Lawyers 2007. See display ad on page 20.
"It has been my experience that no one
handles commercial collections better than
Ron Slates. He has the enthusiasm and
tenacity to resolve matters expeditiously
for his clients. I always refer clients to Ron
because of his attention to detail and his
track record of producing favorable results.
You definitely want Ron on your side."
The Law Offices of
Ronald P. Slates, P.C.
Attorneys and Counselors at Law
Robert E. Mangels
INSURANCE BAD FAITH
THE QUISENBERRY LAW FIRM
2049 Century Park East, Suite 2200, Los Angeles,
CA 90067, (310) 785-7966, fax (310) 785-0254,
e-mail: [email protected]. Web site: www
.quislaw.com. Contact Jennifer Reynolds. The
Quisenberry Law Firm represents individuals and
business policyholders when their insurance company fails to honor its contract or refuses to pay a
claim. We work to protect the rights of everyday
people by making sure that insurance companies
are held accountable under the law for the
promises they make in their policies and for the
actions they take in adjusting claims.
INSURANCE BAD FAITH EXPERT
CLINTON E. MILLER, JD, BCFE
502 Park Avenue, San Jose, CA 95110, (408) 2791034, fax (408) 279-3562, e-mail: [email protected].
Contact Clint Miller. Insurance expert regarding
claims, underwriting, agent and brokers errors and
omissions, coverage disputes, customs and practices, and bad faith. See display ad on page 43.
INTERNATIONAL TRADE
RODRIGUEZ O’DONNELL ROSS GONZALEZ &
WILLIAMS, P.C.
5777 West Century Boulevard, Suite 1500, Los
Angeles, CA 90045, (310) 410-4414, fax (310) 4101017, e-mail: [email protected]. Web site:
www.rorlaw.com. Contact Susan Kohn Ross.
Rodriguez O’Donnell Ross Gonzalez and Williams,
P.C. brings together experienced and knowledgeable practitioners in the fields of international transportation and maritime law, food and drug law, customs law, international trade law (import and export), congressional activities and government relations. With offices in Washington, D.C., Chicago,
Los Angeles, and New York City, the firm represents both foreign and domestic clients before the
governmental and international agencies that regulate and influence international commerce. The firm
also represents clients in these matters in the federal and state courts.
LEGAL MALPRACTICE
LAW OFFICES OF CHRISTOPHER ROLIN
5707 Corsa Avenue, Suite 106, Westlake Village,
CA 91362, (818) 707-7065, fax (818) 735-9992,
e-mail: [email protected]. Web site: www
.chrisrolin.com. Contact Christopher Rolin.
Christopher Rolin is a highly effective trial attorney
with over 40 years of trial activity in civil litigation.
His area of emphasis is attorney malpractice, focusing on the applicable community standard of
care for practicing attorneys in the litigation areas.
His trial experience has resulted in numerous assignments as an expert witness on trial and standards of care issues. He has been retained as an
expert by both plaintiffs and defendants in legal
malpractice cases. He has spoken before numerous professional groups concerning trial practice
issues.
JMBM | Jeffer, Mangels, Butler & Marmaro LLP
Specializing in
523 West 6th Street, Suite 502
Los Angeles, CA 90014-1225
213/624-1515
Commercial
Debt Collection
[email protected]
www.rslateslaw.com | www.lawyers.com/slateslaw
Insurance Bad Faith Expert
Clinton E. Miller, J.D., BCFE
Author: How Insurance Companies Settle Cases
39 YEARS EXPERIENCE
Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide
• Coverage Disputes • Customs and Practices in the Insurance Industry
• Good Faith/Bad Faith Issues
(408) 279-1034 ■ FAX (408) 279-3562
Is Pleased To Announce That
Elizabeth A. Klein
Has joined
The Los Angeles Office of the Firm
601 S. Figueroa Street
201 Spear Street
Suite 4200
Suite 1520
Los Angeles, CA 90017
San Francisco, CA 94105
Tel (213) 312-9200
Tel (415) 356-1100
Fax (213) 312-9201
Fax (415) 356-1105
www.knottglazier.com
Los Angeles Lawyer June 2007 43
LEGAL MALPRACTICE/COMPLEX BUSINESS
LITIGATION
RUMMONDS, RAUSCH, SCHLAFF & MAIR LLP
311 Bonita Drive, Aptos, CA 95003, (831) 6882911, fax (831) 662-3407, e-mail: APR@malpraclaw
.com. Web site: www.malpraclaw.com. Contact A.
Peter Rausch, Jr. RRS&M is a boutique law firm
representing clients from its main office in Aptos,
California and satellite offices from San Diego to
Seattle. RRS&M provides representation for a
broad spectrum of disputes ranging from complex
business litigation to catastrophic personal injury,
and particularly plaintiff’s professional liability cases.
Additionally, RRS&M accepts engagements and referrals in a variety of other practice areas where the
case warrants skilled and high quality representation commensurate with the firm’s qualifications and
experience. See display ad on page 41.
LEMON LAW
LAW OFFICES OF DELSACK & ASSOCIATES, PC
1801 Century Park East, Suite 2400, Los Angeles,
CA 90067, (310) 475-1700, fax (310) 475-1799,
e-mail: [email protected]. Web site: www
.lemonlawspecialists.com. Contact Kurt Delsack.
The Law Offices of Delsack & Associates, P.C.,
have represented many thousands of California
consumers throughout the state in “lemon law”
cases, including automobiles, trucks, motorcycles,
motor homes, and boats. We have obtained recoveries totaling millions of dollars for defective and
unsafe vehicles. We enjoy a superb success rate
and obtained speedy and full recoveries without litigation in nearly all cases. Delsack & Associates is
known for experience, positive relationships with
manufacturers, and speedy and satisfactory settlements.
LITIGATION
HOLLAND & KNIGHT LLP
633 West Fifth Street, 21st Floor, Los Angeles, CA
90071-2040, (213) 896-2400, fax (213) 896-2450.
Web site: www.hklaw.com. Contact Rex Fontenot.
Holland & Knight is a global law firm with more than
1,150 lawyers in 17 U.S. offices. Other offices
worldwide are located in Beijing, Tokyo, and Mexico City, with representative office in Caracas,
Helsinki, and Tel Aviv. Holland & Knight is among
the world’s 15 largest firms, providing representation in litigation, business, real estate and governmental law. Our interdisciplinary practice groups
and industry-based teams ensure clients have access to attorneys throughout the firm, regardless of
location.
MOHAJERIAN LAW CORP
1925 Century Park East, Suite 350, Los Angeles,
CA 90067, (310) 556-3800, fax (310) 556-3817,
e-mail: [email protected]. Web site: www
.mohajerianlawcorp.com. Contact Al Mohajerian.
Mohajerian Law Corp. (MLC), is a multi-practice law
firm that proudly offers efficient, innovative, and
proactive legal services throughout the United
States. Our lawyers have extensive experience
within their respective practice areas; known for
their expertise and diligence in representing clients.
MLC proudly offers the following legal services to
our clients: franchise and distribution, employment
defense, intellectual property, litigation, and real estate law. MLC offers legal counseling, transactional
services, litigation defense and representation, and
a myriad of preventative, proactive legal services.
44 Los Angeles Lawyer June 2007
LAW OFFICES OF CHARLES PEREYRA-SUAREZ
445 South Figueroa Street, Suite 3200, Los Angeles, CA 90071, (213) 623-5923, fax (213) 623-1890,
e-mail: [email protected]. Web site: www
.cpslawfirm.com. Contact Charles PereyraSuarez. Charles Pereyra-Suarez has handled a
broad range of civil and criminal matters during
three decades of practice. Mr. Pereyra-Suarez’s
experience includes complex business litigation,
white-collar criminal defense, whistle-blower cases,
international, government contracts, healthcare, environmental, antitrust, civil rights and First Amendment representation. He is active as a mediator and
arbitrator of various litigation and business disputes. See display ad on page 45.
MEDIATION
GREG DAVID DERIN
10100 Santa Monica Boulevard, Suite 2300, Los
Angeles, CA 90067, (310) 552-1062, fax (310) 5521068, e-mail: [email protected]. Web site: www
.derin.com. Contact Greg David Derin. Trained at
Harvard Law School’s Mediation Workshop, which
he now assists in teaching, Greg brings more than
27 years of litigation experience to his role as a mediator. Greg is the Vice-Chair of the State Bar ADR
Committee, a member of the California Academy of
Distinguished Neutrals, the CPR panel of Distinguished Neutrals and the WIPO mediation panel.
Named by Los Angeles and Law & Politics magazines as a Mediation Super Lawyer, and by the
Hollywood Reporter as a “Power Mediator”. Greg
concentrates his mediation practice on business,
entertainment, intellectual property, employment,
and real estate matters. See display ad on p
age 47.
THE HOLMES LAW FIRM
225 South Lake Avenue, Suite 300, Pasadena, CA
91101, (626) 432-7222, fax (626) 432-7223, e-mail:
[email protected]. Web site: www
.theholmeslawfirm.com. Contact Reginald A.
Holmes. Esq. Intellectual property, employment
and international law. Arbitrator, mediator, referee,
special master, and private judge in the resolution
of complex business disputes. See display ad on
page 8.
JEFF KICHAVEN, A PROFESSIONAL CORPORATION
555 West Fifth Street, Suite 3000, Los Angeles, CA
90013-1010, (213) 996-8465, fax (213) 996-8475,
e-mail: [email protected]. Web site: www
.jeffkichaven.com. Contact Jeff Kichaven. Mediation of commercial cases. California Lawyer Attorney of the Year, 2006. Adjunct professor, Pepperdine Law School; past president, Southern California Mediation Association, Fellow, International
Academy of Mediators; Special expertise in complex insurance and business issues, employment,
entertainment and IP. Harvard Law JD, Berkeley Phi
Beta Kappa. See display ad on page 38.
RCS ADR SERVICES
624 South Grand Avenue, One Wilshire Building,
Suite 2200, Los Angeles, CA 90017, (213) 6297900, fax (213) 629-7990, e-mail: rcspencer
@compuserve.com. Contact Richard C. Spencer.
Mediation with expertise, resulting from a Master’s
Degree in Clinical Psychology, in disputes which
are exacerbated by personal conflicts or personality dynamics. Specialty in shareholder and partnership disputes, as well as disputes in business matters, IP, real estate, employment and personal injury cases. He is a thirty-five-year AV lawyer with litigation, transactional, arbitration and mediation ex-
perience, and is part of the L.A.S.C. mediation
panel, L.A.C.B. arbitration panel, and Second District Court of Appeal mediation panel. Reasonable
rates and downtown facilities available. See display ad on page 41.
PERSONAL INJURY
PERSONAL INJURY LAW GROUP
12400 Wilshire Boulevard, Suite 810, Los Angeles,
CA 90025, (877) 999-5529, fax (310) 820-1258,
e-mail: [email protected]. Web site: www
.personalinjurylawyerinc.com. Contact Sheila
Rivera. Wrongful death claims, aviation accidents,
train accidents, bus accidents, dog bites, spinal
cord injuries, brain injuries, vehicle accidents, slip
and fall, pedestrian injuries and premises liability.
See display ad on page 20.
PRIVATE DISPUTE RESOLUTION
STEVEN R. SAUER, APC
4929 Wilshire Boulevard, Suite 740, Los Angeles,
CA 90010, (323) 933-6833, fax (323) 933-3184,
e-mail: [email protected]. Contact Steven Richard
Sauer, Esq. Settled over 5,000 federal and state litigated cases. Available privately and through
American Arbitration Association, NASD Dispute
Resolution, National Arbitration Forum, Resolute
Systems, US District Court, California Court of Appeal, Los Angeles Supreme Court, LA Civil Service
Commission, and other ADR service providers.
Practice devoted exclusively to resolving disputes
involving large, complex and catastrophic damage
claims in international and domestic arbitrations
and mediations as full time neutral arbitrator, mediator, referee, fact finder, facilitator, and conciliator.
See display ad on page 6.
COMMISSIONER ANITA RAE SHAPIRO (RET)
Alternative Dispute Resolution. P.O. Box 1508,
Brea, CA 92822-1508, cell (714) 606-2649, phone/
fax (714) 529-0415, e-mail: [email protected]. Web site: http://adr-shapiro.com.
Contact Anita Rae Shapiro. Mediation, arbitration,
temporary judge, accounting referee, discovery referee, in probate (wills, trust, conservatorships),
family law, and all areas of civil law, including real
estate. See display ad on page 37.
REAL PROPERTY FORECLOSURES
RICHARD G. WITKIN
530 S. Glenoaks Boulevard, Suite 207, Burbank,
CA 91502, (818) 845-4000, fax (818) 845-4015.
Contact Richard G. Witkin. Specializing in nonjudicial foreclosures for the past 18 years. See display ad on page 20.
RECEIVER
SALTZBURG, RAY & BERGMAN, LLP
12121 Wilshire Boulevard, Suite 600, Los Angeles,
CA 90025, (310) 481-6700, fax (310) 481-6720.
Contact David L. Ray, Esq. Specializes in handling complex receivership matters, such as partnership and corporate dissolutions, including law
firm dissolutions, and government enforcement receivership actions, including actions brought by the
California Department of Corporations, Department
of Real Estate, Commodities Future Trading Commission, and Federal Trade Commission. Nationally
recognized in both the lender and litigation communities as qualified to assist in complicated and commercially sophisticated liquidations, reorganizations, and ongoing business operations. See display ad on page 45.
SOCIAL SECURITY
David L. Ray
CALIFORNIA SOCIAL SECURITY ADVOCATES
12400 Wilshire Boulevard, Suite 810, Los Angeles,
CA 90025, (866) 325-4529, fax (310) 820-1258,
e-mail: [email protected]. Web site: www
.socialsecuritylawattorney.com. Contact
Stephanie Esguerra. Social Security disability
claim, supplemental security income claim (SSI),
retirement benefits, social security spouse benefits, social security death benefits, SSI/RSDI overpayment defense and SSI fraud protection. See
display ad on page 31.
Saltzburg, Ray & Bergman, LLP
Partnerships and Corporate Dissolutions
Government Enforcement Receivership Actions
Receivership
Partition Actions/Marital Dissolution
TEL
SOCIAL SECURITY DISABILITY AND
SUPPLEMENTAL SECURITY INCOME
FAX
LAW OFFICES OF SUSAN R. WASSERMAN
5055 Wilshire Boulevard, Suite 340, Los Angeles,
CA 90036, (323) 954-9600, fax (323) 954-9616.
Web site: www.socialsecuritylawfirm.com. Contact
Jennifer L. Cho, Esq. Our practice is limited to
Social Security disability and Supplemental Security Income cases. We handle claims from the initial application level through appeals before the U.
S. District Court.
WHITE COLLAR
LAW OFFICES OF LAWRENCE WOLF
10390 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90025, (310) 277-1707, fax (310) 2771500, e-mail: [email protected]. Web site:
www.youareinnocent.com. Contact Lawrence
Wolf. Specializing in embezzlement, theft, financial fraud, forgery and bad checks, Lawrence Wolf
has exclusively practiced criminal defense for
more than 30 years. Our white-collar criminal attorneys are tenacious negotiators and fierce litigators
who can handle complex, voluminous evidence.
Our firm has established long-term relationship
with judges and prosecutors throughout Los Angeles, Orange, Sacramento, and Ventura Counties.
WORKERS’ COMPENSATION
12121 Wilshire Boulevard, Suite 600, Los Angeles CA 90025
CHARLES PEREYRA-SUAREZ
MEDIATOR, ARBITRATOR AND EXPERT WITNESS
RELEVANT EXPERIENCE:
• Trial/Appellate Attorney, U.S. Justice Department
Civil Rights Division
• Federal Prosecutor in Los Angeles
• Litigation Partner in Two National Law Firms
• Judge Pro Tem, Los Angeles Superior Court
• Diverse ADR and Expert Witness Practice
SPECIAL EDUCATION
VALERIE VANAMAN
Newman Aaronson Vanaman, 14001 Ventura
Boulevard, Sherman Oaks, CA 91423, (818) 9907722, fax (818) 501-1306, e-mail: intake@navlaw
.net. Web site: www.navlaw.net. Contact Intake
Department. For four decades, Valerie Vanaman
has been providing knowledgeable and compassionate representation to people who need help
obtaining services from private and government
agencies. Since the inception of her firm, Newman
Aaronson Vanaman in 1981, she has been the acknowledged leader in representing clients at IEP
meetings, due process mediations and hearings,
and related federal court actions. She also assists
families with expulsions and in securing eligibility
and services from regional centers.
e-mail: [email protected] • www.srblaw.com
(310) 481-6700
(310) 481-6707
445 S. Figueroa St., Suite 3200, Los Angeles CA 90071
Tel 213.623.5923 Fax 213.623.1890 http://www.cpslawfirm.com
WE ARE A LAW FIRM. WE FORM AND
MAINTAIN ENTITIES. THAT’S ALL.
Incorporation
Service Companies
California Incorporation
Determine Name Availability and Reserve Name
Prepare and File Articles
All Secretary of State Filing Fees
Custom Bylaws
Custom Organizational Minutes, authorizing the election of officers and
directors, establishment of bank accounts, issuance of stock, and other matters
Preparation and Issuance of Share Certificates
Statement of Information and Filing Fees
Preparation of 25102(f) Certificate and Filing Fees*
Prepare IRS Form SS-4 and Obtain Tax Identification No.
Prepare and File IRS Form 2553 to make “S” Election
Ancillary Documents, including Promissory Notes, Medical Expense
Reimbursement Plan, Employment Agreement
Resident Agent Services for one year
Follow up to ensure all documents are properly signed, filed, fees are paid, and
formation is properly completed
Experienced counsel handling every formation and available to consult on all
aspects of the process
Corporate Kit, Seal, and duplicate Set of Documents on CD
WAX & WAX
411 North Central Avenue, Suite 520, Glendale,
CA 91203, (818) 247-1001, fax (818) 247-2421.
Contact Alan Wax. We are certified specialists in
Workers’ Compensation Law. We are on the Board
of Governors of the California Applicants’ Attorneys Association with over 50 years of experience.
Accountant Copy of All Documents Delivered on CD-ROM
eMinutes Entity Management System (with online document library, real-time
monitoring of corporate deadlines) via secure web-based interface
Automatic Enrollment in Annual Minutes System
Cost
*For capitalization up to $100,000
$1,000
Los Angeles 310.772.7700
Toll-Free 866.JEFF UNGER
Los Angeles Lawyer June 2007 45
computer counselor
BY RAMANA VENKATA AND MICHAEL A. GEIBELSON
Overcoming E-Discovery Challenges with New Technologies
ELECTRONIC DISCOVERY has entered the legal mainstream. E-mail and documents were not ordered in any particular way to facilitate
electronic documents now dominate business communication, and the review.
volume of data continues to increase at extraordinary rates. The
recent revisions to the Federal Rules of Civil Procedure (FRCP) rec- Computerized Document Grouping
ognize the increasing centrality of electronically stored information New technologies conceptually organize the document collection
for litigation and regulatory investigations. As a result, counsel face automatically, based on an analysis of document content independent
mounting pressure to control the cost of e-discovery, meet court- of user-selected key words. The software analyzes the combinations
ordered time lines, and ensure that personnel with the necessary of words and terms in each document and then compares each doccombination of legal and technical knowledge are available to man- ument to every other document in the collection. When thousands or
age e-discovery projects.
millions of documents are involved, this task simply cannot be perTo meet these challenges, law firms and
their clients can take advantage of a new generation of document review applications. These
A common misperception of this process is that the documents
e-discovery solutions provide tools for handling
electronic information across a range of activities, including data collection and restoraget moved or altered in some way. In fact, they do not. Concept folders
tion, forensic data analysis, sophisticated review
and analysis, and production.
How to control e-discovery costs is a major
contain only electronic links to the documents they contain.
challenge for outside counsel and their clients.
The amount of electronic information that
needs to be reviewed continues to increase,
but the cost of e-discovery can still be managed effectively. Quality formed manually. The results of this comparison are concept folders.
control measures, document organization, and batch tagging can These virtual folders catalog and sort documents based upon the relasignificantly lower the cost of e-discovery and help satisfy client tionships among them. The folders are then arranged into a hierardemands for finite, predictable e-discovery costs. Predictability can chical table of contents that can be further sorted and reviewed.
be achieved by taking advantage of new technologies that help attorA common misperception of this process is that the documents
neys organize the data collected during discovery according to con- get moved or altered in some way. In fact, they do not. Concept foldcepts and issues.
ers contain only electronic links to the documents they contain. As
The impact of these processing and review technologies on elec- a complement to concept folders, which are solely based on the contronic discovery is best understood in a brief historical context. tent of the documents, attorneys can create smart issue folders, which
Originally, but in many cases to this day, documents were reviewed are based on custodians, date ranges, key words, or more advanced
in hard copy only. In some situations, however, printing everything Boolean criteria. These folders capture documents that are of interand reviewing it from the first box through the last, called linear doc- est for reasons not related to their content.
Concept folders and smart issue folders facilitate the identification
ument review, is likely unworkable, not to mention incredibly expensive and time-consuming. In a matter involving multiple reviewers, of relevant and irrelevant documents before human review. Spam,
interoffice party memoranda, IT-related e-mail, and other less releit can also be highly inconsistent and inaccurate.
The first e-discovery technology introduced in the 1980s involved vant documents are automatically segregated into easily identifiable
scanning hard copy documents and displaying them electronically as folders. Attorneys can then quickly review these documents, taking
images that could be transmitted and stored electronically. Electronic advantage of batch tagging operations, and tag documents that are
display, however, did not solve the problems with hard copy docu- nonresponsive.
The processing and review steps must maintain high levels of
ment review; it just substituted one linear medium for another.
Optical character recognition software emerged next, which is able accuracy. Correcting a mistake in processing or review can be very
to extract the text of documents so they could be indexed and expensive. Fortunately, studies and actual casework have shown that
searched. With the subsequent addition of database programs, review- the combination of document organization and batch tagging helps
ers were able to code (or tag) documents for particular issues. attorneys conduct high-productivity reviews and minimize errors.
Reviewers could search for and review documents (both those originally in hard copy as well as the native electronic documents and e- Ramana Venkata is CEO of Stratify, Inc., and has consulted with large and small
mail) for phrases such as “statute of limitation” and tag them appro- firms on e-discovery strategies. Michael Geibelson is a partner with Robins,
priately. The original documents remained untouched. However, the Kaplan, Miller & Ciresi LLP in Los Angeles.
46 Los Angeles Lawyer June 2007
How to meet court-ordered deadlines is
the second e-discovery challenge facing outside counsel. The revised FRCP has expanded
the role of electronic information in discovery and increased attorney responsibility
when dealing with electronic information
systems. However, the scheduling decisions of
courts do not necessarily take into account the
time needed to process, review, and produce
large volumes of electronic data.
This is another area in which technologyassisted review can help attorneys take control of the discovery process. Manual and
search-based systems involve linear document review in which reviewers encounter
documents on different topics one after
another. This is cognitively inefficient, because
to make sense of each document and assess
it correctly, reviewers must constantly readjust their conceptual frame of reference. This
cognitive inefficiency is addressed by organizing related documents together into appropriate concept folders, which enables reviewers to maintain their frame of reference while
reviewing entire groups of documents. This
enhanced cognitive focus results in more efficient review as well as more accurate tagging.
Second, linear document reviews are more
susceptible to inadvertent production and
potential waiver of privilege due to the inconsistent tagging of near-duplicate documents
(such as contract versions in Word, financial
analyses in Excel spreadsheets, and strings of
e-mail). While document tagging depends on
multiple factors, including reviewer expertise
and the speed and context of the review, the
possibility that two or more reviewers making different judgments regarding near-duplicate documents increases if they review nearduplicates separately.
Advanced e-discovery solutions identify
near-duplicate documents and group them
for review. Whenever a near-duplicate is
encountered, the reviewer can directly access
all related near-duplicate documents. This
enables a single reviewer to review and compare all the instances and versions of a document and tag them consistently. The capability of reviewing near-duplicates together
accelerates the review, and even more important, it minimizes the danger of inadvertent
production.
The combination of concept organization
and near-duplicate detection in an easy-to-use
review application enables law firms to
achieve a major breakthrough in productivity. Although it may seem incredible, reviewers taking advantage of these new capabilities
have achieved average review rates of 300 to
500 documents per hour, with sustained
bursts of 1,000 documents per hour. Law
firms have documented review rates as high
as 15,000 documents per day per reviewer.
These results represent a major improvement
Los Angeles Lawyer June 2007 47
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48 Los Angeles Lawyer June 2007
over traditional in-house and outsourced
search-based systems that historically deliver
review rates ranging from 30 to 60 documents per hour.
Finally, efficiently managing e-discovery
matters is the third challenge that law firms
must address. In the past, litigation support
personnel within firms, or smaller litigation
support companies, were sufficiently knowledgeable and had enough capacity to handle
most discovery matters. However, the expertise required to manage matters has outpaced
their ability to assimilate and master all relevant technologies. And the high growth in
e-discovery matters creates severe resource
constraints for litigation support personnel or
smaller electronic discovery companies.
Foreign language e-discovery highlights
these challenges. There has been an explosion
of large-scale matters that include documents
not only in English and other Western
European languages but also languages such
as Chinese, Japanese, Korean, Thai, and Vietnamese. If incorrect software or processing
techniques are used at any stage of the e-discovery process in matters involving these languages, severe problems can result. For example, search indices can be created that do not
correctly identify and retrieve documents for
searches containing foreign language key
words. Few vendors in the e-discovery community have the type of detailed knowledge
required to appropriately handle complex
foreign languages. Foreign language expertise
across all e-discovery capabilities (data collection and extraction, foreign language document organization, search, annotation,
redaction, and production) is critical for a successful review.
The size and sophistication of e-discovery
matters creates challenges for outside counsel. When matters involve hundreds of gigabytes or terabytes of data, the ability to
increase the volume and rate of data processing while supporting dozens or hundreds
of reviewers becomes critically important.
This requires a scalable infrastructure that can
handle new matters quickly.
Now recognized by the FRCP, electronic
information has assumed a central role in
discovery. It has also created pressure on outside counsel to control the cost of e-discovery, meet court-ordered deadlines, and manage e-discovery projects. To meet these
challenges, law firms and their clients should
take advantage of the newest generation of
technology-assisted review applications that
provide advanced capabilities. Automatic
concept organization and near-duplicate
detection are two relatively new tools to help
attorneys meet the still-growing challenges of
e-discovery. These capabilities help teams
accelerate review while making it more accurate and consistent.
■
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Vacation Rentals
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Personal Injury and Worker’s Comp. cases accepted on lien basis.
Los Angeles Lawyer June 2007 49
Aon Direct Administrators/LACBA Professional Liability, p. 1,
Metrocities Mortgage Inc., p. 8
Tel. 800-634-9177 www.attorneys-advantage.com
Tel. 800-464-2484 www.metrociti.com
Arbitration and Mediation Group, p. 4
Clinton E. Miller, JD, p. 43
Tel. 818-790-1851 www.mediationla.com
Tel. 408-279-1034 www.millerjd.qpg.com
Lee Jay Berman, p. 16
National Institute for Trial Advocacy, p. 4
Tel. 213-383-0438 www.leejayberman.com
Tel. 877-648-2632 www.nita.org
The California Academy of Distinguished Neutrals, p. 26, 27
Noriega Clinics, p. 49
Tel. 310-341-3879 www.CaliforniaNeutrals.org
Tel. 323-728-8268
California Western School of Law, p. 22
Charles Pereyra-Suarez, p. 45
Tel. 800-255-4252 www.californiawestern.edu
Tel. 213-623-5923 www.cpslawfirm.com
California Eminent Domain Law Group, APC, p. 38
REMC Executive Suites, p. 11
Tel. 818-957-0477 www.caledlaw.com
Tel. 949-936-2600 www.remcinc.com
Coldwell Banker, p. 38
R. S. Ruggles & Co., Inc., Inside Back Cover
Tel. 310-442-1398 www.mickeykessler.com
Tel. 800-526-0863 www.rsruggles.com
Commerce Escrow Company, p. 16
Rummonds Rausch Schlaff & Mair LLP, p. 41
Tel. 213-484-0855 www.comescrow.com
Tel. 813-688-2911 www.malpraclaw.com
Cook Construction, p. 30
Saltzburg Ray & Bergman, LLP, p. 45
Tel. 818-438-4535 e-mail: [email protected]
Tel. 310-481-6700 www.srblaw.com
Creative Dispute Resolution, p. 48
Steven R. Sauer APC, p. 6
Tel. 877-CDRADR (877-237-4237) www.adr-fritz.com
Tel. 323-933-6833 e-mail: [email protected]
Dixon Q. Dern, P.C., p. 21
Stephen Sears, CPA-Attorney at Law, p. 47
Tel. 310-557-2244 e-mail: [email protected]
www.searsatty.com
Forensic Construction Defect & Engr./96/960, Inc./Expert Witness, p. 31 Anita Rae Shapiro, p. 37
Tel. 213-632-1310 e-mail: [email protected]
Tel. 714-529-0415 www.adr-shapiro.com
G. L. Howard CPA, p. 47
Law Offices of Ronald P. Slates, p. 43
Tel. 562-431-9844 e-mail: [email protected]
Tel. 213 624-1515 www.rslateslaw.com
Paul Gabbert, p. 42
Special Counsel, p. 37
Tel. 310-399-3259 e-mail: [email protected]
Tel. 323-658-6065 www.specialcounsel.com
Steven L. Gleitman, Esq., p. 6
Steven Peck’s Premier Legal, p. 40
Tel. 310-553-5080
Tel. 866-999-9085 www.premierlegal.org
Greg David Derin, p. 47
Stonefield Josephson, Inc., p. 2
Tel. 310-552-1062 www.derin.com
The Holmes Law Firm, p. 8
Tel. 626-432-7222 www.theholmeslawfirm.com
Jack Trimarco & Associates Polygraph, Inc., p. 21
Tel. 310-247-2637 www.jacktrimarco.com
Lawrence W. Crispo, p. 36
Tel. 213-926-6665 e-mail: [email protected]
Law Offices of Rock O. Kendall, p. 38
Tel. 949-388-0524 www.dmv-law.com
Jeffrey Kichaven, p. 38
Tel. 213-996-8465 www.jeffkichaven.com
Judge Lawrence Waddington, p. 20
www.arbitrationadr.com
Lawyers’ Mutual Insurance Co., p. 7
Tel. 800-252-2045 www.lawyersmutual.com
Lexis Publishing, Inside Front Cover, p. 9
www.lexis.com
MCLE4LAWYERS.COM, p. 21
Tel. 310-552-4907 www.MCLEforlawyers.com
Mesriani Law Group, p. 6, 20, 31
Tel. 310-826-6300 e-mail:[email protected]
50 Los Angeles Lawyer June 2007
Tel. 866-225-4511 www.sjaccounting.com
The Suit Closet, p. 31
Tel. 213-747-2829 www.thesuitcloset.com
Tenrec, Inc., p. 47
Tel. 415-543-6600 x101 e-mail: [email protected]
Tsoi & Associates/Victoria J. Suh, p. 40
Tel. 213-387-2888 e-mail: [email protected]
UngerLaw, P.C., p. 45
Tel. 310-772-7700 www.ungerlaw.com
Vision Sciences Research Corporation, p. 30
Tel. 925-837-2083 www.contrastsensitivity.net
West Group, Back Cover
Tel. 800-762-5272 www.westgroup.com
White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 11
Tel. 818-981-4226 www.wzwlw.com
Witkin & Eisinger, LLC, p. 20
Tel. 310-670-1500
Wolfsdorf Immigration Law Group, p. 20
Tel. 310-570-4088 www.wolfsdorf.com
Using the U.S. Central District Web Site
ON TUESDAY, JUNE 12, the Litigation Section will host a Breakfast at the Bar
featuring speaker Sherri R. Carter, district court executive and clerk of court
for the Central District of California. This program will demonstrate how
almost every question one might ask about practice in the federal court
can be answered at any time with the click of a mouse. From judges’
individual requirements and Local Rules to ADR information and pro bono
opportunities—it is all available online. Carter will demonstrate to those in
attendance the key areas and information that is available on the California
Central District Court Web site. The program will take place at the LACBA
Conference Center, 281 South Figueroa Street, Downtown. Reduced parking
is available with validation for $10. On-site registration and breakfast will
begin at 7 A.M., with the program continuing from 7:30 to 8:30. The
registration code number is 009682. The prices below include the meal.
$15—CLE+PLUS members
$45—attorneys (over two years in practice)
$40—support staff and new attorneys (under 2 years)
$50—all others
$60—at-the-door registrants
1 CLE hour
Estate Planning for the
International Family
ON WEDNESDAY, JUNE 20, the Taxation
Section’s Estate and Gift and Foreign Tax
Committees, together with the Society of
Trusts and Estate Practitioners, will present
a program featuring speakers Katharine
Davidson, Lawrence H. Heller, William K.
Norman, Jean Tardy-Vallernaud, and
Barbara Zak on how estate planners can
better advise multinational families on
cross-border estate planning and taxation
issues. This program is structured as a role
play in which international estate planners
advise a multinational family on crossborder estate planning and taxation issues.
The program will take place at the Olympic
Collection, 11301 Olympic Boulevard in Los
Angeles.
The posted parking rate is $6. On-site
Issues Affecting California Employers
ON THURSDAY, JUNE 14, the Business and Corporations Law Section, with the
Labor and Employment Law and Corporate Law Departments Sections, will host
a program in which Jeffrey F. Webb will lead a discussion on the key legal issues
affecting employers in California. This program offers attorneys valuable tools
for representing smaller or larger, as well as newer or established, businesses.
The program will take place at the LACBA Conference Center, 281 South Figueroa
Street, Downtown. Reduced parking is available with validation for $10. On-site
registration and the meal will begin at 7:15 A.M., with the program continuing
from 8 to 9:30. The prices below include the meal.
$15—CLE+PLUS members
$70—Business and Corporations Law, Labor and Employment Law, Corporate
Law Departments, and Barristers Section members
$80—LACBA members
$90—all others, including at-the-door registrants
1.5 CLE hours
registration and the meal will begin at 7:30
A.M., with the program continuing from
8:30 to 10:30. The registration code
number is 009707. The prices below
include the meal.
$25—CLE+PLUS card holders
$50—International Law, Trust and Estate
Section members
$60—LACBA members
$70—all others
$80—at-the-door registrants
2 CLE hours with specialization credit in
taxation
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed
on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at
http://calendar.lacba.org/. For a full listing of this month’s Association programs, please consult the County Bar Update.
Los Angeles Lawyer June 2007 51
closing argument
BY KEITH PAUL BISHOP
First Thing, Let’s Jail All the Lawyers
A LEGAL PUBLICATION recently published some remarks I had made responsibility often will be to protect and defend a client from illethat were critical of the Securities and Exchange Commission’s han- gal, unconstitutional, or improper activities on the part of the regudling of the stock option “backdating” issue. Seeing these remarks, lator. The gatekeeper paradigm now being popularized by regulators
a colleague sent me an e-mail in which he hoped that the SEC would undermines the historic independence of the private bar by subtly shiftnot read my remarks and hold them against me. My reaction to this ing its allegiance to the regulator.
Regulators are also using the gatekeeper concept to ratchet up
missive was, “Has it really come to this? Have regulators so coopted
and intimidated the private bar that we are now afraid to speak out?” enforcement pressure on the private bar. Cox emphasized this very
Unfortunately, that may well be the case. Most securities lawyers point when he threatened “enforcement actions” against lawyers. The
with whom I speak these days are afraid and depressed. There is good threat of civil or criminal enforcement is likely to have the direct effect
reason for their mood. In the last several years, the challenges of com- of silencing opposition and criticism in the private bar. It also encourpliance have increased as the complexity of
the law has grown. At the same time, regulators and prosecutors have purported to redeFederal wire fraud statutes are so broadly worded that they
fine the role of private lawyers. In their view,
we have changed teams. We are no longer
advocates and advisers to our clients. Now, we
criminalize almost any activity that includes routine legal advice.
are our clients’ gatekeepers and the regulators’ partners.
Since the enactment of the Sarbanes-Oxley
Act in July 2002, securities lawyers have had to contend with a ages lawyers to give the most conservative advice possible. In today’s
tsunami of new statutory and regulatory requirements. Last year, for environment, a lawyer who gives advice with which the SEC disagrees
example, the SEC adopted regulations governing the disclosure of exec- faces the prospect of a civil enforcement action or worse.
Nearly a half century ago, Harvard Law Professor Henry M.
utive compensation. The adopting release for these regulations
exceeds 400 pages. Recently, I participated in a panel discussion in Hart Jr. wrote, “What sense does it make to insist upon procedural
which an SEC attorney attempted to minimize the burden by saying safeguards in criminal prosecutions if anything whatever can be
that the “meat” of the release was “only” about 100 pages. This was made a crime in the first place?” Federal wire fraud statutes are so
broadly worded that they criminalize almost any activity that includes
cold consolation, indeed.
While lawyers are facing an increasingly intricate and ever-chang- routine legal advice and advocacy. As a result, virtually any mistake,
ing regulatory environment, civil and criminal enforcement author- omission, or misunderstanding on the part of a lawyer could result
ities are taking aim directly at lawyers. Now, the prevailing attitude in the prospect of a lengthy federal prison sentence. Lawyers know
among regulators is that the lawyers are “gatekeepers” and “watch- this. They are also acutely aware of the rapidly multiplying number
dogs” of their clients’ conduct. SEC Chairman Christopher Cox of statutes and rules that they must learn and interpret for their
made this quite clear in a recent speech to the Corporate Counsel clients. They know, too, that compliance in most instances requires
Institute in which he said, “It’s because the roles of gatekeeper and the application of judgment. In most instances, they are required to
watchdog come with a great deal of responsibility that, when pro- advise their clients with incomplete information. As a result, lawyers
fessionals—lawyers or accountants—fail to live up to their respon- today understandably fear that the only thing that separates them from
an indictment is luck or fate.
sibility, the commission will bring enforcement actions.”
In contemporary society the lawyer is not a popular figure. The
The notion of lawyers as gatekeepers has a certain facial appeal.
From a regulator’s perspective, denominating lawyers as gatekeepers hard truth is that many people would not shed a tear if a few lawyers
is a way of drafting more professionals to your team. Gatekeepers do went to jail. Nonetheless, the regulatory campaign against lawyers
not work for their clients exclusively. Rather, they are partners of the threatens our legal system and ultimately the liberty of everyone. When
government. Again, Chairman Cox has no doubts about the new sta- the government has cowed the private bar into submission, who
tus of the private bar. In his speech to the Corporate Counsel Institute, will have the skills and training to challenge the regulators? A good
he unequivocally asserted, “The SEC views you [lawyers] as impor- recipe for tyranny is to intimidate and coopt private lawyers. In the
tant partners in our mission to protect investors,” and “we view former Soviet Union, I doubt that any private citizen had any doubts
lawyers as critical partners in our mission.” In claiming that lawyers about the true allegiance of his or her lawyer. Now is the time for us
■
are partners of the SEC, Chairman Cox completely misapprehends to decide for whom we work.
the role of private attorneys in our system of justice. As an advocate
and adviser, a private lawyer’s obligation is first and foremost to his Keith Paul Bishop is a shareholder at Buchalter Nemer and a former California
or her clients. Rather than partnering with a regulator, the lawyer’s commissioner of corporations.
52 Los Angeles Lawyer June 2007
click, click,
click, (sigh)
click, click,
click, click,
click, click,
click, click,
click, click,
click, click,
click, click,
(am I done
click, click,
click, click,
click, click,
click, click,
click, click,
click, click,
click, click,
click, click,
click, click,
click, click,
click,
click,
click,
click,
click,
click,
click,
click,
click,
yet?)
click,
click,
click,
click,
click,
click,
click,
click,
click,
click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, (oh, c’mon!) click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, (ugh) click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
click, click, click, click,
(oh, for cryin’ out loud!)
click, click, click, click.
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