Chapter 4, Confidentiality, and a New EU Case on Lawyer Surveillance

If you are looking for a way to introduce cutting-edge issues into Chapter 4 on lawyer confidentiality, you can refer to a CCBE press release about an October 27, 2015 decision from the Dutch Court of Appeals regarding lawyer surveillance.  The CCBE is the acronym for the Council of Bars and Law Societies of Europe, which represents the bars and law societies in the EU. The press release included the following summary of the background of the case:

“In May of this year the CCBE successfully intervened before The Hague District Court in a challenge brought against the Dutch State by the law firm Prakken d’Oliveira and the Dutch Association of Criminal Defence Lawyers (NVSA). The Court was questioned on the legality of eavesdropping by domestic intelligence agencies on lawyers’ calls and communications. In its verdict delivered on July 1st, the court recognised that the ability to communicate confidentially with a lawyer is a fundamental right which is currently being breached under Dutch surveillance policy. The court therefore ordered the Dutch government to stop all interception of communications between clients and their lawyers under the current regime within six months. In response, the Dutch State fast-tracked an appeal against the judgement.  On 25 August, the CCBE challenged the grounds of the appeal.”

The CCBE press release reported that the Dutch Court of Appeal had upheld the trial court’s ruling, noting that:

“In its ruling, the Dutch Court of Appeal dismissed all the grounds of appeal alleged by the Dutch State. The Court indicates that according to case law of the European Court of Human Rights surveillance activities must be subject to review by an independent body with the power to prevent or terminate potential infringements of professional secrecy.”

The CCBE press release contains links to the court decisions (in Dutch) and news stories.  Additional information is found on this CCBE Surveillance Working Group webpageThis CCBE webpage also has confidentiality-related information.

$890 million in advertising for clients?

From Forbes today comes this, “Lawyers Bump Advertising Spending to $890 Million in Quest for Clients.”

A few highlights:

The phrase “San Antonio car wreck attorney” is the most expensive search string on the Web, at $670 per click, followed by “Accident attorney Riverside CA,” at $626. In fact, 23 of the 25 most expensive search terms involve lawyers and litigation, according to a new survey by the U.S. Chamber’s Institute for Legal Reform, which doesn’t think much of lawyer advertising.

Defying the trend toward declining television advertising spending, lawyers have increased their spending by 68% over the past eight years to an expected $892 million this year, the ILR reports, as law firms seek clients for lawsuits over prescription drugs, medical devices and asbestos.

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The ILR study paints a portrait of an industry that knows where its customers are – often in front of a television set, watching afternoon programs, or searching the web for information about a medical condition – and knows how to get their attention.

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Law firm spending on TV ads has been rising six times faster than overall spending since 2008, the study found.

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Lawyers have also flooded the Internet and social media with their messages, buying search terms and linking up with “influencers” and “Super Tweeters” who write about litigious subjects on Facebook and Twitter.

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The Institute for Legal Reform thinks all this advertising stimulates too much litigation, and the example of pelvic mesh implants may demonstrate their point. But plaintiff lawyers and some academics make exactly the opposite argument: Advertising helps drive more socially useful litigation by people who otherwise might not realize they have a valid claim.

The U.S. Supreme Court has held the First Amendment applies to lawyers, too, noted Anthony Sebok, a professor at Cardozo Law School in New York who writes frequently on the merits of greater involvement in civil litigation. “Big Pharma is doing the same thing as Big Tort,” he noted in an e-mail to me, by advertising directly to consumers in order to prompt them to ask their physicians for prescription drugs. The important distinction is between advertising for potential clients and invading their privacy by directly contacting them after an accident or medical mishap.

“Obviously the line between advertising and solicitation is a hard one to draw, but at no time have the courts worried about the interests of defendants when talking about where to draw the line,” Sebok told me.  “The concern is for the victims of accidents, who shouldn’t be harassed and pressured, and the state’s interest in maintaining the reputation of the legal profession.”

“Should you be allowed to invest in a lawsuit?” asks the NYT

A excerpt from the article appearing in Sunday’s NYT Magazine:

Hedge funds, banks and insurance companies have long been quietly funding the occasional lawsuit, but no major United States investment outfit in the commercial arena specialized in the practice until Juridica was founded in 2007. The industry’s early growth was driven in part by the recession, which made lawyers at big companies eager to hand off risk and also increased the demand among investors for opportunities that could pay off no matter what was happening in the world’s markets. Today the industry seems to have become a permanent part of the financial landscape, with shares of prominent funders trading every day on stock exchanges in London and Sydney.

Anthony Sebok, a professor at Cardozo Law who advises Burford, says he sees the practice as part of a broader trend toward the financialization of the law. ‘‘Why can’t I promise a stranger some piece of the game?’’ he asked me, paraphrasing Bentham’s writings. ‘‘Is there something icky about it, like I’m commodifying my rights? Bentham says these legal rights are our property. Why shouldn’t we be able to sell them?’’ Jonathan Molot, a professor at Georgetown Law who serves as Burford’s chief investment officer, has written that stock offerings by law firms could improve morale, lower rates and help lawyers focus on maximizing long-term profits. Like lawsuits, the firm itself should evolve into an asset. ‘‘It’s a mistake for lawyers to hunker down and say we’re different, we’re excluded, we’re not part of the economy,’’ he said.

But the interests of financiers and plaintiffs are not always so well aligned. Depending on the structure of the deal and the ultimate payout, plaintiffs sometimes walk away with a few crumbs after the funders and lawyers take their share. One such outcome happened in 2007, when Altitude Capital, a funder, invested $8 million in an intellectual-property suit filed by DeepNines, a small network security company, against McAfee, a much larger competitor. The case was settled for $25 million, but after expenses ($2.1 million), lawyers’ fees (roughly $11 million) and Altitude’s cut ($10 million), DeepNines took home $800,000, a little over 3 percent of its settlement. Then, Altitude questioned DeepNines’ math, arguing that the company shouldn’t have deducted its own expenses before calculating contingency fees. It sued its former partner for $5 million more, eventually dropping the suit in 2011.

This kind of falling out is unusual, but it shows the fundamental conflict that can occur.

Full article here.

Rhetoric: Aristotle, RBG, and the art of persuasion

Source: Rhetoric: Aristotle, RBG, and the art of persuasion

Rhetoric was long a required course at Fordham College as at other colleges that followed the classical education model. The class centered – back in the day – on Aristotle’s classic  Rhetoric.  It is a highly accessible treatise well worth reading.  The Philosopher, as Aquinas called him, emphasizes the  discipline of facts and the need to look at both sides of a question:

[W]e must be able to employ persuasion, just as strict reasoning can be employed, on opposite sides of a question, not in order that we may in practice employ it in both ways (for we must not make people believe what is wrong), but in order that we may see clearly what the facts are, and that, if another man argues unfairly, we on our part may be able to confute him. No other of the arts draws opposite conclusions: dialectic and rhetoric alone do this. Both these arts draw opposite conclusions impartially. Nevertheless, the underlying facts do not lend themselves equally well to the contrary views. No; things that are true and things that are better are, by their nature, practically always easier to prove and easier to believe in.

Read more

Low award, low fee?  

The Supreme Court, split 5-4, in 1992 concluded that in a 1983 action that yielded only nominal damages the reasonable fee was no fee. the broad language of Justice Thomas for the plurality  set the tone for pegging fees to damages under the Civil Rights Attorneys Fee Awards Act of 1976 [42 U.S.C. 1988].  But that obviously is a shallow approach to what it means to be a prevailing party – especially if forward looking equitable relief is achieved.  Awards that achieve “furthering the vindication and deterrence goals of § 1983” deserve to be recognized as substantially prevailing and support an award of fees. – gwc

h/t Torts Prof Blog

Thomas Eaton and Mike Wells have posted to SSRN Attorney’s Fees, Nominal Damages, and Section 1983 Litigation.  The abstract provides:

Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how the plaintiff’s constitutional rights were violated. These complexities render Farrar a poor case upon which to frame a rule regarding the relationship between damage awards and the proper calculation of attorney’s fees. Second, the “low award, low fee” approach is inconsistent with congressional intent. When Congress enacted § 1988 it emphasized the public benefit of vindicating constitutional rights and deterring constitutional violations. No less important, it recognized that the harms caused by constitutional wrongs often are not easily measured in terms of traditional monetary remedies – a circumstance that would discourage attorneys from taking on the representation of plaintiffs in this important set of cases. The low award/low fee approach contravenes these purposes because it effectively discourages the bringing of large numbers of highly meritorious cases involving the abridgment of constitutional rights. Indeed, the effect of this approach is perverse, because it blocks the recovery of meaningful attorney’s fees in the very set of low damages-serious constitutional wrong cases in which the need to incentivize the provision of legal services is most pressing.

Yet another challenge to the Florida Bar advertising regulations

The personal injury law firm of Searcy Denney Scarola Barnhart & Shipley PA sued the Florida Bar challenging two aspects of its rules concerning lawyer advertising.  On September 30, 2015, Judge Hinkle from the Northern District ruled that the challenge to the requirements that references to past results must be “objectively verifiable” was not yet ripe for review.

The lawsuit also challenged the Florida Bar’s ban on truthful statements regarding a lawyer’s specialty or expertise, absent certification under the Florida Bar certification program or some outside certifying organization. Judge Hinkle found that this rule failed all three prongs of the Central Hudson analysis, and granted the plaintiff’s summary judgment motion in part.

I expect this is not the last word from the federal courts on Florida’s efforts to regulate lawyer advertising. Stay tuned.

See Christian D. Searcy et. al v. The Florida Bar, 2015 WL 5769238