Who participates in standards work?

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1 Ethics Issues in Standards Work Eric A. Prager Who participates in standards work? Engineers, attorneys Different obligations under ethics rules (cf. antitrust law) 1

2 Key issues for attorneys Out-of-state practice Duty of honesty Communication with represented party Conflicts of interest 2 Some lawyers act in varying capacities But first are you practicing law? In-house lawyers Businesspeople who are lawyers Ask some questions Am I giving legal advice? Do I expect privilege to attach? Am I a legal l rather than business advocate? 3

3 Beware the instructions you give Rules of Professional Conduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; 4 Beware the instructions you give cont. Model Code of Professional Responsibility A. A lawyer shall not: * * * 2. Circumvent a Disciplinary Rule through the actions of another. 5

4 Out-of-state practice Rules of Professional Conduct Rule 5.5 Unauthorized Practice of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. * * * 6 Out-of-state practice cont. Rules of Professional Conduct (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: [cont.] 7

5 Rules of Professional Conduct (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; * * *; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer s practice in a jurisdiction in which the lawyer is admitted to practice. 8 Out-of-state practice cont. Rules of Professional Conduct (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyer s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. 9

6 Out-of-state practice cont. Model Code of Professional Responsibility DR Aiding Unauthorized Practice of Law. jurisdiction. 10 Rules of Professional Conduct Rule 8.5 Disciplinary Authority; Choice of Law. (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. 11

7 Practice tips Beware when negotiating in other states. Beware of choice of law provisions. Communicate to client scope of advice (e.g. Washington law only). Consider availability of Rule 5.5(c). 12 Duty of honesty Rules of Professional Conduct Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 [confidentiality]. 13

8 Duty of honesty cont. Model Code of Professional Responsibility A. A lawyer or law firm shall not: 4. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 14 Application Puffery (usually okay) Silence where duty to speak (duty rare vis-à-vis non-clients) Adversary s misunderstanding of fact/law (vanguard issue, duty sometimes found) Issues associated with 37 C.F.R

9 Represented party Rule 4.2 Communication with Person Represented by Counsel Represented party cont. Rules of Professional Conduct Comment [3]: The Rule applies even though the represented person initiates or consents to the communication

10 Represented party cont. Model Code of Professional Responsibility DR Communicating with Represented and Unrepresented Parties. What s at risk? Boyfriend sues former girlfriend. At boyfriend s deposition, boyfriend s lawyer leaves the room during a break. Boyfriend asks girlfriend s lawyer how she is doing. Lawyer says he is concerned about her and the toll the case is taking; he says he s sure she d be better if boyfriend dropped the case. Lawyer formally admonished, despite no prior disciplinary record. Mass. Bd. of Bar Overseers, Admonition No

11 Practice tips Beware of this rule in negotiations. Beware that represented by counsel includes in-house counsel (and watch for floaters). Remember only the other side s lawyer can waive the obligation. 20 Conflicts of interest Rule 1.7 Conflict Of Interest: Current Clients

12 Conflicts of interest cont. Model Code of Professional Responsibility A. A lawyer shall decline proffered employment if the exercise of the lawyer s independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105(C) [waiver]. 22 Practice tips Beware multiple clients in same industry. Beware interrelated standards. Beware patent disclosure obligations. Beware later entrants to SSO, licensees, etc. 23

13 Thanks for your attention. Ei Eric A. Prager Sample Title Sample slide text Sample bullet text Bullet level 2 Bullet level 3 Bullet level 4 Bullet level 5 25

14 Sample Title Sample slide text Sample bullet text Bullet level 2 Bullet level 3 Bullet level 4 Bullet level 5 26 Sample Title Sample slide text Sample bullet text Bullet level 2 Bullet level 3 Bullet level 4 Bullet level 5 27

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