This month, the Professional Ethics Committee for the State Bar of Texas issued Opinion No. 685, which addressed whether a lawyer could encourage current or former clients to post favorable reviews or comments on social media sites. The Texas opinion stated that, so long as nothing of value was given for the reviews and that the lawyer did not encourage false, misleading, or unfounded statements, this would be appropriate.
On the other hand, while not deciding whether a lawyer has an obligation to monitor posts, the opinion joined the views of other states and explained that “if lawyer becomes aware that a client posted a favorable review that is false, misleading, or unfounded, the lawyer should take reasonable steps to see that the statement is corrected or removed.” The opinion suggested that, if the lawyer controlled the site, the statement should be removed, but even if the lawyer did not, the lawyer should ask the author to address the concern, or “consider” asking the owner of the site to address the concern. Finally, it suggested that if that failed, the lawyer should make a “curative statement” — but one that did not violate client confidences.
Lawyers have been taken to task several times for revealing client confidences, but it has been after someone posts a negative comment and the lawyer, defending herself, revealed client confidences. The Texas opinion, like others, emphasized that revealing confidential information even in response to a negative review is improper, unless the client consents to disclosure.
I’m imagining a former client posting “David got me a better result than any other lawyer could have,” and me having to post something in response! So, below, please only post truthful things and don’t overstate my abilities or I’ll have to cure your kindness.
I’ve long written about ethics and technology (my old paper about email security, I am proud to say, pushed back on the idea that (at least in the 1990s) email was insecure). For an AIPLA speech I’m giving next month, I wrote a paper on various ethical issues that arise with the use of social media. It is available here.
The issue that I’ve run into a few times now in IP cases is judicial research into facts. I represented people in one of those matters, which was before the OED, and can’t reveal anything much about it, and the other was a case where judicial research led to a show cause order that was based upon…. poor judicial research. The paper points out those and similar problems.
This blog will focus on disciplinary, ethical, and liability issues relating to patent practice, including patent litigation, patent prosecution, opinion work, and transactions. Occasionally it will delve into other areas of intellectual property, ethics generally (since it's not as if ethics in patent practice is completely unconnected from ethics generally), and patent law to the extent it implicates the core concern of the blog.
But I believe less is better, when it comes to scope.
If you have topic suggestions, recently published articles, or cases of note, please email me (david @ hricik . com).
Who I am: Professor of Law at Mercer University School of Law. I have authored and co-authored the two leading treatises in this area (both published by Oxford University Press and available at bookstores everywhere!), written dozens of articles in the field, and given a hundred or so presentations. I've taught ethics and patent law. I've served as an expert in matters before the Office of Enrollment and Discipline, represented practitioners there, and litigated legal ethics and patent matters and served as an expert in all sorts of patent-related ethical disputes. I'll be clerking for Chief Judge Randall R. Rader starting in October (I assume I'll be able to blog during the following eleven months, but don't know.)
So, with that, substantive posts should appear daily during the week.
Glad to be hear and thanks, Dennis, for the opportunity.