By David Hricik
Mercer Law School
Hi, all,
Slightly off-topic question and not limited to patent-IP related courses. If you have any thoughts on what you’d do to improve legal ethics courses in law school, fire away. I am teaching it this summer (I’ve taught it at half dozen schools) and I’m doing a much more problem-based even than usual but I always feel like the course could have more “real life” to it but… anyhow maybe that’s not even the right thought. Any thoughts or comments appreciated: I practiced full-time for 14 years, and part-time for another 16, and so I bring more “practical” content to the course than many professors but I never feel good about the course.
Thanks!
One topic that I’d like to have had covered in my professional responsibility class: when a private practice lawyer interviews for a job with a new law firm, how much can they say about their work at the previous firm? If the interviewing lawyer is asked for a writing sample, can they, as an associate, point to a response signed by a partner? How much can the attorney say identifying clients and describing what they have done? I heard about one situation where a lawyer did very secret, sensitive work for a client at a first firm, then moved to a second firm. At what stage does the attorney reveal having worked for the client? If the firm does not ask, does the attorney need to volunteer?
Also, I’m glad to hear that your course covers the ethics of keeping data secure; it’s another point that I’ve come across in practice.
Yes, we cover that. I use a (sad) story of when I was the “ethic guru” at Baker Botts, and a woman had told Firm A she was leaving (and didn’t do so very nicely) and then new firm realized hiring her would create a conflict (because she hadn’t identified one key matter) and… jobless. Luckily, they now have a specific rule for disclosure to detect/avoid conflicts.
I am curious as well as to explicit writing samples.
Would an extra caveat of an application having been published (and thus, the image file wrapper containing any such writing sample being also public knowledge) change the calculus? Just because something may be public knowledge in a general sense, is the attorney representation being shared outside of that representation without the client’s knowledge or consent still ethical?
What about the practice of ‘ghost writing’ or attribution? I am well aware of practice in more than one firm in which only a selected partner’s name is on prosecution submissions. Is that practice itself within ethical bounds? If so, would merely presenting this as an additional fact with the writing sample (presumed public knowledge) still be ethical?
Determine core principles that need to be taught. Divide the class into the Lion and the Tiger groups. Come up with 10 or so scenarios and give Lions 5 wins and Tigers 5 wins under the core principles, and in each class have them debate the scenario, ending with a statement by you of who should win under the core principle. This would teach them advocacy and drill in the core principle. And if they go outside ethical obligations in their advocacy, you would have another teaching moment. And you could publish the result for other ethics professors to use.
Susan,
While your idea has a certain fascination from a ‘debating’ standpoint, I think that the tactic would be entirely counterproductive.
Worse, I think that it would send the message that ethics is merely another legal mechanism to be gamed.
Remember, most law students have a peculiar and rather unrealistic view of the real world, and all too often, ‘academic exercises’ carry NO tie to that real world.
Ethics IS — and should be — different.
You could include a section about the practitioner’s responsibilities in ex parte proceedings, which is a little different than in an inter partes proceeding.
Yep, covering that but in the form of a discussion of TROs (this is the general ethics class).
Include sensitivity to digital tools (particularly digital assistants like Amazon Echo, etc.). What is visible, audible or otherwise discernible in your home/office (or “home office”) environment is being consistently fed into learning algorithms or simply observed by human third parties. We as attorneys are required to be technically competent and need to align that competence with our ethical obligations.
That is an awesome idea. I have a special 2 hour section on technology and ethics but don’t cover the Alexa/etc. stuff very much. I cover redaction fails, cloud storage issues/outsourcing/AI, metadata (and things like properties and track changes), e-discovery (in a general way — where data is with IoT, how to know whether you need Native files, etc.). But I hadn’t thought of that.
Speaking of which, yesterday from Amazon a bottle of anti-itch cream for dogs came and I had not ordered it but we had talked about the need for it for one of our dogs. How creepy is that?
The biggest trouble I’ve ever seen anyone get in is when they forget 1) who the client is and b) that whatever the client has asked your advice on, it’s still their decision.
That also states the problem: many haven’t had jobs (at all) let alone been agents, which is what lawyers are.
I’m starting off this semester asking them WHY the bars all require applicants to show they have “good moral character.” They’re coming up with lots of policy reasons. None, so far, have said things like “because lawyers have power and can hurt people: their clients, opposing parties, non-clients, courts… They don’t understand what lawyers do and the environment….
Excellent point – as my Uncle Ben used to say, with great power comes great responsibility.
Re your request, I would think someone in the PTO Office of Enrollment and Discipline would be happy to provide you with some of their issues and disciplinary case examples re professional ethics violations and consequences, since they regularly provide that in CLE programs.
I have also heard good horror stories and statistics that should keep students awake on this subject from attorney malpractice insurance company representatives. They have a vested interest in improvements.
Thanks. I do presentations with the OED regularly and try to deal with those common problems — neglect and then covering it up is a huge one, as well as commingling funds, etc.. The CLEs I do (way too often) often deal with esoteric issues that patent lawyers face.
The problems I think I’m struggling to overcome and that (and someone else made this point here) is they aren’t used to there being a client — who has control and a big say in many decisions — and that they will face pressures to do the wrong thing. I often use discovery as an example — they’re plowing through documents and find a really bad one, and no one will know if they deem it “non responsive.” (Of course, we all know those bad documents have a way of emerging.). The book I use has some good problems with that premise — as a young lawyer needing a job, the young lawyer sees some evidence that her boss is stealing but not enough to “know” it’s happening.
Anyhow, I need more coffee…
A wrinkle to throw into this emphasis of “agent of the client” is that a First Duty – even above “does this help the client” exists.
This can be spun a multitude of ways, but as I mentioned below, IS something that should have been learned by the second grade.
Another powerful wrinkle is that there are ‘sins’ of commission and ‘sins’ of omission.
‘Turning a blind eye’ can be every bit as unethical as doing something.
That is a good point. Some of the book’s problems raise that issue and to me the important one of: what will you do when the right thing is to look further, but no one will know if you did… and then, of course, change the facts and someone figures it out and says, “you had to have known!”
Tagging onto this, I co-organized a legal seminar at my company, and one of the speakers was William Covey (Deputy General Counsel for Enrollment and Discipline, and Director for the Office of Enrollment and Discipline; United States Patent & Trademark Office). He is an excellent and dynamic speaker and gave a wonderful presentation on ethical considerations of practice before the USPTO.
Yep, Will and I do a couple of panels a year — did one last month with him. But it’s a generalist course, though maybe I can persuade him to do basic client identity discussions, which there’s some doozies at the OED.
comment caught in filter – no idea why
(One) difficulty is in attempting to sit down with a bunch of Type A (generally hard-driving to the point of ruthless) individuals at a point in their life (post graduate, but typically not having been in the real world) and try to teach them what they should have been taught before the second grade.
May I suggest a synopsis of the television show Dexter, with a focus on the choices of Dexter’s father?
Ah, we have a generational thing, I think. Is Dexter like the Brady Bunch? Partridge Family?
I have to chuckle…
link to en.wikipedia.org
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