Although the point of the new ABA Formal Ethics Opinion is important–“don’t reveal information relating to the representation”–its first paragraph appears at least a decade behind. The article begins:
Lawyers comment on legal topics in various formats. The newest format is online
publications such as blogs . . .
The line included a footnote explaining the term “blog.” As a an FYI – “Blog” was Merriam-Webster’s word-of-the-year in 2004.
“The newest format is online publications such as blogs . . . “ (followed by a FN explaining the term).
At post 2 below, I comment that both Malcolm and Ned may be implicated by this Formal Opinion 480.
This is NOT a new thought from me, and the genesis of the comment existed PRIOR TO the publication of Formal Opinion 480, and can be found in the archives of this blog.
While the immediate thrust of the Formal Opinion 480 has to do with “maintain the confidentiality of information” this is by no means the only ethical requirement affecting attorneys that “floats through” and affects HOW attorneys may advocate (even on blogs).
To wit, from the Opinion (emphasis added):
“Lawyers who communicate about legal topics in public commentary must comply with the Model Rules of Professional Conduct, including [_] {the word “including” indicates that the immediate focus is NOT the only “float through”}… A lawyer’s public commentary may also implicate the lawyer’s duties under other Rules, including [_] {the word “including” indicates that the immediate focus is NOT the only “float through”}…
One other “float through” that SHOULD BE of note: Rule 8.4.
One more – in particular, given that Prof. Crouch has direct knowledge of Malcolm’s actual identity: Rule 8.3.
6 has crowed in the past that he “knows” who Malcolm really is. While this is doubtful (and has always been met from me with the response that I really do not care who Malcolm really is), others – notably the editor of this blog – DO KNOW who Malcolm really is.
Lastly, even if we did not want to “go there” as to Rule 8.3, Malcolm himself has affirmatively held himself out as an attorney, and as at a minimum, his “style of advocacy” involving as it does outright L I E S, a spectrum of dissembling, and clear disrepute to the profession, clearly rises to a level of “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
The following appears to have been the last comment made by Ned Heller:
link to patentlyo.com
March 17, 2018 at 2:57 pm
Q, quite right.
This, in relation to a reply to me from Quasar18, which reply, happens to be NOT “quite right.”
There were only two other posts by Ned after the Formal Opinion 480, and none of these three can be said to contain much of anything substantial.
I would prefer that Ned’s silence be related to a realization of ethical impact, as opposed to one that is stemming from any type of medical condition.
Consistency is certainly not the hallmark of blogs. Just as one example, after a number of comments on Gene’s blog about some study allegedly showing how poor our IP protection is compared to other countries [ignoring the inconsistent fact that half of U.S. application filings are foreign], the latest Gene blog is for a CLE program entitled “Global Patent Landscape 2018: Where to File and Why” which starts by stating that: “The United States was once again the top ranked country in the U.S. Chamber of Commerce’s annual Global IP Index for 2018.”
Speaking of Blogs, the latest “PostGrant” Blog reports that over the 5 years [of IPRs and the relatively few other AIA post-grant trial petitions for CBMs and PGRs] “the actual trial institution rates have continuously tracked downward from 85+% to a current 50-60% range.”
Thanks Paul – do you think this reflects “low hanging fruit” and any particular sunset effects?
While there may have originally been a backlog of lawsuits by PAE’s on broad software related claims with inadequate PTO prior art searches, aka low hanging fruit, that cannot have had an impact on petition grant rates that lasted very long since IPRs must be filed within a year of the complaint.
The only “sunset” provision is for CBMs, but they were always relatively rare and have gotten even rarer since the PTAB has limited their effective scope.
Since 85% of IPRs are in response to patent suits, I would guess that less patents lawsuits are being filed on easily challenged patent claims due to the Sup. Ct. encouragement of attorney fee sanctions, and venue and 101 challenges.
thanks again
Apropos of Hawking, when one is near a massive object, time passes more slowly.
The ABA is a sizable institution…..
The ABA process for taking a public position on legislation or anything else, or filing an amicus brief, is much more difficult and time consuming than that of the AIPLA or IPO, and at the highest approval level involves few patent attorneys.
What?
Ethics and legal arguments…
…on a blog?
Malcolm’s in trouble!
Perhaps coincidence (perhaps not), but Ned’s precipitous drop-off in commenting appears to coincide with the arrival of Formal Opinion 480.
Dennis, look at the bright side: at least the ABA is aware of the internet.
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