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Attorney

Attorneys involved with genetics include criminal prosecutors (district attorneys), public defenders, environmental lawyers, family lawyers, and patent attorneys. Genetics is relevant in the areas of identification of suspects and victims, identification of illegal goods (for example, items that involve the killing of endangered animals), environmental monitoring for harmful microorganisms, parentage determinations, and the patenting of genetic materials.

While all of these different types of lawyers may need to be somewhat familiar with the fundamentals of genetics, attorneys who work on gene patents must be very familiar with both genetics and biochemistry, as well as with patent law. The majority of these patent attorneys specialize in biotechnology. Most biotechnology patent attorneys have advanced degrees, with many having Ph.D.s in genetics, microbiology, molecular biology, biochemistry, or related fields. In addition to having a strong science background, patent attorneys must be licensed to practice law in at least one state, and must pass a registration examination administered by the U.S. Patent and Trademark Office (USPTO).

Patent agents, as well as patent attorneys, can represent inventors before the USPTO. Patent agents have strong science backgrounds and must pass the USPTO registration examination, but are not licensed to practice law in any state. In addition to having very strong science backgrounds and the ability to work closely with inventors, patent attorneys and agents must enjoy reading complex scientific literature and be proficient at scientific writing. A large portion of the job involves writing scientific documents in the form of patent applications. Thus, people who enjoy reading and writing about scientific topics are well suited to the profession.

Patent attorneys and agents typically work in law firms, private companies, the U.S. Patent and Trademark Office (patent examiners), or in the technology transfer offices of universities and public institutions such as hospitals and research facilities, although some work out of their homes as solo practitioners. Patent attorneys and agents often know about ground breaking developments long before the public or others in their fields. This makes the career very interesting, exciting, and enjoyable. However, because of client confidentiality, patent attorneys and agents are required to keep these developments secret until the information is made public by the client or a patent is issued.

While some patent attorneys only draft patent applications and work with patent examiners, others work as litigators, patent law experts, law school professors, or trademark lawyers. For complicated cases, patent attorneys with an education in genetics are very helpful in explaining the technology to the judge or jury. Although most patent attorneys work on patent cases in courts, their expertise may also be called upon in criminal cases, when assistance is needed to analyze and explain complex sciences such as genetics and molecular biology.

Salaries differ widely among patent attorneys and agents who work in law firms, companies, and at universities. As of 2000, new Ph.D.-level patent attorneys could expect to earn at least $100,000 per year, while new Ph.D.level patent agents could expect to earn at least $75,000 per year. However, some patent attorneys could earn well over $500,000 per year.

see also Legal Issues; Patenting Genes.

Kamrin T. MacKnight

Bibliography

U.S. Patent and Trademark Office, Manual of Patent Examining Procedure. Washington, DC: Superintendent of Documents, U.S. Government Printing Office, 2000.

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Attorney

ATTORNEY

A person admitted to practice law in at least one jurisdiction and authorized to perform criminal and civil legal functions on behalf of clients. These functions include providing legal counsel, drafting legal documents, and representing clients before courts, administrative agencies, and other tribunals.

Unless a contrary meaning is plainly indicated this term is synonymous with "attorney at law,""lawyer," or "counselor at law."

In order to become an attorney, a person must obtain a Juris Doctor degree from an accredited law school, although this requirement may vary in some states. Attendance at law school usually entails three years of full-time study, or four years of study in evening classes, where available. A bachelor's degree is generally a prerequisite to admission to law school.

With few exceptions, a person must pass the bar examination of that state in order to be admitted to practice law there. After passing a bar examination and practicing law for a specified period, a person may be admitted to the bars of other states, pursuant to their own court rules.

Although an attorney might be required by law to render some services pro bono (free of charge), the individual is ordinarily entitled to compensation for the reasonable value of services performed. He or she has a right, called an attorney's lien, to retain the property or money of a client until payment has been received for all services. An attorney must generally obtain court permission to discontinue representation of a client during the course of a trial or criminal proceedings.

Certain discourse between attorney and client is protected by the attorney-client privilege. In the law of evidence, the client can refuse to divulge and prohibit anyone else from disclosing confidential communications transmitted to and from the attorney. Notwithstanding, attorneys are permitted to make general (non-privileged) pre-trial statements to the press if there is a "reasonable likelihood" that the statements will not interfere with a fair trial or otherwise prejudice the due administration of justice (In re Morrissey, 168 F.3d 134 [4th Cir. 1999]).

cross-references

Attorney-Client Privilege; Attorney Misconduct; Continuing Legal Education; Legal Education; Legal Representation; Right to Counsel.

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attorney

attorney, agent put in place of another to manage particular affairs of the principal. An attorney in fact is an agent who conducts business under authority that is controlled and limited by a written document called a letter, or power, of attorney granted by the principal. An attorney at law is an officer of a court of law authorized to represent the person employing him (the client) in legal proceedings. England retains the distinction between the attorney as agent, the solicitor, who deals directly with the client but does not act as an advocate in court, and the attorney as pleader, the barrister (called advocate in Scotland), who presents the case in court. Most senior and distinguished barristers are designated King's (Queen's) counsel. The distinction between agent and pleader also exists in Europe. In the United States, a similar distinction was formerly made in some states between a counselor at law, who argued the case in court, and an attorney, who prepared the case but did not argue it; but that distinction has now generally disappeared. Today an attorney at law is authorized to exercise all the functions of a practicing lawyer. The growth of large business corporations, beginning in the 19th cent., has brought into existence a large group of attorneys who rarely or never act as trial lawyers yet are among the most influential members of the profession. They work directly for corporations or are members of large law firms and specialize in areas of commercial law. All of them must, however, like the ordinary attorney, be admitted to the bar. The term attorney is also used for county, state, and federal prosecuting officers, as county attorney, district attorney, and attorney general (see Justice, United States Department of).

See M. Mayer, Lawyers (1967); K. L. Hall, ed., The Legal Profession (1987).

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attorney

at·tor·ney / əˈtərnē/ • n. (pl. -neys) 1. a person appointed to act for another in business or legal matters. 2. a lawyer. DERIVATIVES: at·tor·ney·ship / ship/ n.

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attorney

attorney2 legal agency (in letter, power of attorney). XV. — OF. atornée, sb. use of fem. pp. of atorner (see prec.).

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attorney

attorney1 legal agent. XIV. — OF. atorné, sb. use of pp. of atorner assign, appoint, f. a- AD- + torner TURN.

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attorney

attorneyLéonie, peony •Tierney •Briony, bryony, Hermione •tourney • ebony • Albany •chalcedony • Alderney •Persephone, Stephanie, telephony •antiphony, epiphany, polyphony, tiffany •symphony •cacophony, homophony, theophany, Zoffany •euphony • agony • garganey •Antigone •cosmogony, mahogany, theogony •balcony • Gascony • Tuscany •calumny •felony, Melanie, miscellany •villainy • colony •Chamonix, salmony, scammony, Tammany •harmony •anemone, Emeny, hegemony, lemony, Yemeni •alimony, palimony •agrimony • acrimony •matrimony, patrimony •ceremony • parsimony • antimony •sanctimony • testimony • simony •Romany • Germany • threepenny •timpani • sixpenny • tuppenny •accompany, company •barony • saffrony • tyranny •synchrony • irony • saxony • cushiony •Anthony • betony •Brittany, dittany, litany •botany, cottony, monotony •gluttony, muttony •Bethany • oniony • raisiny •attorney, Burney, Czerny, Ernie, ferny, gurney, journey, Verny

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Attorney

ATTORNEY

ATTORNEY . Biblical law requires that "the two parties to the dispute shall appear before the Lord, before the priests or magistrates" (Deut. 19:17), i.e., in person and not by proxy. It was considered essential that the court should hear all pleadings and arguments, as well as all testimony, directly from the mouths of litigants or witnesses; even interpreters were not to be admitted (Mak. 1:9; Maim., Yad, Sanhedrin 21:8). While legal and economical developments subsequently necessitated changes in the practice of the courts, the prejudice against proxies could never be eradicated, and the courts which admitted advocates did so only by way of accommodation to a necessary evil (Meir b. Baruch of Rothenburg, Responsa (1895), 67b, no. 357). This prejudice was enhanced by the fact that those who acted as spokesmen for litigants were often found to be sly and untruthful (Isaac b. Sheshet, Responsa (1805), 125, no. 235). The Talmud applies the verse "oppressors and robbers who did that which is not good among his people" (Ezek. 18:18) to attorneys (Shevu. 31a). Furthermore, there were legal difficulties to contend with: e.g., a debtor was presumed never to be impertinent enough to prevaricate in the presence of his creditor (bk 107a, et al.), but there could not be any such presumption in the face of the creditor's attorney; or a party may have to take an *oath, which could not be administered to his proxy. The general rule that "a man's agent is as himself" (Kid. 42a) was not applied to agents for litigants – an anomaly which it has been found difficult to justify but which can be explained only by the overriding desire "to discourage litigation by outsiders" (Herzog, Instit, 1 (1936), 203 ff.).

However, ways had to be found to enable plaintiffs to be represented if injustice was to be avoided – e.g., where the plaintiff himself was absent, or where he was weak and timid and the defendant violent and powerful (Tos. to Shevu. 31a; Tur, Ḥm 123:16 and Beit Yosef ibid.). Nevertheless, talmudic jurists still would not accept a power of attorney in favor of another, unless the plaintiff had therein transferred his rights in the chose in action to the attorney, so that the attorney in effect claimed in his own right (bk 70a) – not unlike the mandatum in res suam of Roman law. The result of this rule in the past was that a defendant was unable to appoint an attorney on his behalf, as he had no chose in action to transfer (Asher b. Jehiel, Tosefei Rabbenu Asher, Shevu. 30a, Sh. Ar., Ḥm 124). Gulak has shown that the rule is of Babylonian origin and influenced by Babylonian laws; but it became Jewish law (Sh. Ar., Ḥm 122–23). The requirements for such a transfer to be inserted in powers of attorney were in the course of time radically mitigated and Maimonides expressed regret at reforms by which purely fictitious transfers were admitted to validate powers of attorney (Maim., Yad, Sheluḥin ve-Shutafin 3:7). While transfers continued to be inserted in all powers of attorney, they were nearly always fictitious: anything the attorney recovered by virtue thereof, although ostensibly for himself, would have to be accounted for immediately to his principal (3:1).

With regard to the representation of defendants, there is a tradition in the Jerusalem Talmud that the high priest, when sued in court, could appoint an attorney (entelar) to represent him (tj, Sanh. 2:1, 19d). Whether it was this tradition or the pressure of changing conditions, attorneys for defendants were soon admitted into the courts, and instead of powers of attorney containing the formal transfer, even oral authorization of the attorney by the defendant before the court was accepted as sufficient (Menahem b. Solomon ha-Me'iri, Beit ha-Beḥirah to Sanh. 18a). Where the parties were present in person and the court could, if necessary, administer oaths directly to them and perceive their bearing and demeanor, their being assisted by skilled pleaders was not considered too reprehensible and could even be useful (cf. Urim ve-Tummim and J.H. Epstein, Arukh ha-Shulḥan to Ḥm 124). The rule then evolved that a plaintiff, by presenting his claim, submitted to the court's jurisdiction and thus also by implication submitted to its procedure, including any customary or equitable admission of defendants' attorneys (cf. Siftei Kohen, Sh. Ar., Ḥm 124). But apart from custom (and equity), the purely legal position has never been resolved (see Bezalel Ashkenazi, Shitah Mekubbeẓet to bk 70a).

The stipulation of fees was regarded as an assurance of the attorney's good faith (Isaac Alfasi, Responsa (1954), 98, no. 157; Be'er Heitev to Sh. Ar., Ḥm 123:10, 11), eliminating the suspicion that he might engage in champerty or unlawful enrichment. Such stipulations were usually very generously enforced by the courts (Solomon b. Abraham Adret, Responsa 2 (1811), 56a (erroneously 58), no. 393; 3 (1812), 21a, no. 141; 5 (1884), 123, no. 287.

bibliography:

Rav Ẓa'ir (Tchernowitz), in: Ha-Shilo'aḥ, 3 (1898), 418–22; Gulak, Yesodei, 4 (1922), 54–64; idem, Oẓar, 272–9; idem, Das Urkundenwesen im Talmud (1935), 137–47; S. Assaf, Battei ha-Din ve-Sidreihem Aḥarei Ḥatimat ha-Talmud (1924), 95–99; Herzog, Instit, 1 (1936), 202–11; Lipkin, in: Sinai, 30 (1951/52), 46–61; 31 (1951/52), 265–83; et, 4 (1952), 101–4, s.v. Ba'al Din; 11 (1965), 44–48, s.v.Harsha'ah.

[Haim Hermann Cohn]

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Attorney

Attorney

A person admitted to practice law in at least one jurisdiction and authorized to perform criminal and civil legal functions on behalf of clients. These functions include providing legal counsel, drafting legal documents, and representing clients before courts, administrative agencies, and other tribunals.

Rise in Internet Legal Services Raises Questions

The field of law has embraced the Internet in many ways, though the incorporation of this technology has given rise to numerous issues as well. In some instances, operators of web sites that promote free legal advice may be guilty of practicing law without a license. Similarly, an attorney who is licensed in one state may commit the unauthorized practice of law by soliciting clients from other states through use of advertisements on the Internet. Rules of ethics as well as ethics opinions have attempted to clarify some questions in recent years, though issues related to Internet legal services remain.

A growing number of web sites attract visitors by advertising free legal advice, often by offering answers to general legal questions. Examples of such sites include FreeAdvice (http://freeadvice.com), 911 Law Network (http://www.911law.net), and Legal Advice Line (http://www.legaladviceline.com/default_1024.htm). Several online bulletin boards also provide legal information to those who pose questions. A number of these web sites double as lawyer referral systems, allowing users to find names and contact information for lawyers who specialize in certain areas of the law. Some sites, such as LegalMatch (http://www.legalmatch.com), focus more exclusively on the latter service.

Definitions of the practice of law vary widely from one state to another. The Rules of the Supreme Court of Arizona provide a representative example. Under these rules, the "'practice of law' means providing legal advice or services to or for another by: (A) Preparing any document in any medium intended to affect or secure legal rights for a specific person or entity; (B) Preparing or expressing legal opinions; (C) Representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitrations and mediations; (D) Preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity; or (E) Negotiating legal rights or responsibilities for a specific person or entity." Other states also include employment as a judge and certain official as the practice of law.

In 2003, the American Bar Association (ABA) established the Task Force on the Model Definition of the Practice of Law. In the years prior to the formation of the Task Force, the ABA had adopted policies that were dependent on the definition of the practice of law, but the organization never formally adopted a definition of this phrase. The Task Force released a 14-page report in August 2003. This report did not provide a short, concise definition of the practice of law, but rather discussed the basic premises for such a definition. The starting point for such a definition is the provision of legal advice, the report noted. According to the Task Force, "the application of legal principles and judgment to the circumstances or objectives of another person or entity is implicit in the giving of legal advice" and thus the ABA used this notion "as the broad basic premise for creating a definition of the practice of law."

An Illinois appellate court in 2002 determined that a law firm could bring an action against an Internet business that was allegedly engaged in the unauthorized practice of law. Richard F. Mallen & Assoc., Ltd. v. Myinjury claim.com, Corp., 769 N.E.2d 74 (Ill. App. 2002). An individual who was injured in an automobile accident could seek and obtain legal advice from the business, which did not have a license to practice law. In some instances, the person seeking the advice was charged a fee for the advice. Although the decision hinged on whether the law firm that brought the suit had standing to do so, this case suggests that businesses that run these web sites could be liable for giving legal advice without a license.

On the other hand, some commentators have noted that few states actively prosecute instances where a business or individual has engaged in the unauthorized practice of law, except in the most egregious cases. Laws governing the unauthorized practice of law are often enforced by state bar associations, although in some states, such as California, a county prosecutor may bring an action. A person who engages in unauthorized practice is more likely to be subject to a cease-and-desist order than criminal prosecution, even though in many states this practice constitutes a crime.

In addition to a non-lawyer who improperly provides legal advice, an attorney licensed in one state may engage in the unauthorized practice of law by soliciting business from and representing clients in another state where the attorney is not licensed. In a 1998 decision, the California Supreme Court recognized that an out-of-state attorney may engage in unauthorized practice "by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means." Birbrower, Montalbano, Condon, & Frank, P.C. v. Superior Court, 949 P.2d 1 (Cal. 1998).

Even where attorneys communicate through the Internet in states where they are licensed, this communication can give rise to other issues. Where an attorney offers legal advice to another person concerning a legal dispute or a legal question, the nature of the communication could give rise to an attorney-client relationship. For this reason, commentators generally recommend that lawyers do not provide advice via email, web sites, message boards, or in chat rooms. Communication through email, a web site, or other means could also compromise a client's confidential information. For this reason, lawyers prefer to send encrypted emails. If encryption is not available and the lawyer believes that a certain communication is highly sensitive, the lawyer should consult with the client regarding how that information should be communicated.

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Attorney

ATTORNEY

A person admitted to practice law in at least one jurisdiction and authorized to perform criminal and civil legal functions on behalf of clients. These functions include providing legal counsel, drafting legal documents, and representing clients before courts, administrative agencies, and other tribunals.

Prosecutor Disbarred in Duke LaCrosse Case

In January 2008, disgraced and disbarred Durham County, North Carolina former prosecutor Mike Nifong was removed from a civil lawsuit filed by three Duke University lacrosse players who were falsely accused of rape. Three weeks earlier, he had filed for bankruptcy, citing more than $180 million in liabilities, mostly for estimated damages from pending civil litigation. The removal from the civil lawsuit was anti-climatic, considering the media-sensationalized rape story that monopolized front-page headlines across the nation for several weeks in 2006. Nifong already had been disbarred from practicing law by the North Carolina Bar Association in June 2007 as a result of pursuing the case against the three Duke students even though DNA evidence had cleared them months earlier. Five months later, in October 2007, Nifong and 13 other were sued for their role in the malicious prosecution.

The three Duke students, Reade Seligmann, Collin Finnerty, and David Evans, were indicted by a Durham County grand jury in 2006 on charges of rape, kidnapping, and sexual offense. The charges stemmed from a party thrown by members of the lacrosse team who allegedly hired a stripper. However, the stripper later accused the three of attacking her in a bathroom and raping her. The fact that she was an African-American and the three accused students were white “privileged” Duke students further sensationalized the case and placed Nifong in the forefront of media coverage.

But the case began to unravel early on, riddled with flimsy evidence and an accuser who frequently changed her story. The three students strongly maintained their innocence from the beginning and fully cooperated with police. When two DNA tests failed to find a match between any of the three accused players and evidence in the case, Nifong, who was up for reelection at the time, pursued the case anyway. In fact, the DNA testing found genetic material from at least four other men in the accuser's underwear and body, but none of them was a Duke lacrosse team member. Notwithstanding, Nifong did not release this exculpatory information to defense counsel for several months.

Evidence presented at his State Bar disciplinary trial showed that prior to the rape case, Nifong was trailing another candidate by 20 percent to 37 percent in his political bid for reelection as county prosecutor. However, following his press coverage in the case, he was reelected by a 45 to 42 percent margin. He had liberally granted press interviews at the time and his public comments during press briefings had touched nerves of race, class and privilege, using loaded words such as “reprehensible,” “unconscionable,” and “deep racial motivation” (in the students' alleged conduct).

Following his reelection in November 2006, Nifong dropped the rape charges in December after the accuser again changed an important detail in her story. He announced that he would proceed against the students on other related charges. However, North Carolina's attorney general took over the case and in April 2007 determined that all the charges were unfounded. Near simultaneously, he announced that Nifong would undergo investigation by the state bar association.

Fourteen months after being charged, the three students were fully exonerated and all charges dropped. However, in the protracted interim, they had been forced from the lacrosse team, dropped out as students, and at least one of them suffered the rescission of a job offer after the prospective employer learned of the indictment.

At Nifong's disciplinary trial, the panel of the North Carolina Bar concluded that no discipline short of disbarment would be appropriate. The panel found Nifong guilty of violating more than 12 ethics rules in prosecuting the case against the three young men. The most serious charges were that Nifong withheld the key DNA evidence from the players' defense attorneys that likely would have cleared them early on. Even more disturbing was the substantiated charge that he lied to the presiding judge in the rape case, after the judge asked him if he knew of any evidence that might exonerate the defendants. He also later lied to state bar investigators. The panel, in renouncing Nifong's conduct, concluded that Nifong practiced “dishonesty, fraud, deceit, and misrepresentation.”

The disciplinary panel also concluded that the motivation for Nifong's misconduct was political and intended to further his political career. This was particularly evident in the racially-inflammatory remarks Nifong made during press conferences during the early days of the case. After a recess in the hearing, Nifong's attorney surprised the panel and stated that his client believed he deserved to be disbarred and would waive all right of appeal in the proceedings.

In October 2007, a 150-page civil suit was filed against Nifong and several local officials, including former police chief Steven Chalmers, police investigators, and Brian Meehan, the director of DNA Security, Inc., which had conducted the DNA tests that proved key in unraveling the case. The lawsuit sought unspecified punitive and compensatory damages, attorneys' fees, and several legal reforms to the Durham Police Department's procedures and investigations. The suit followed failed negotiations between the parties.

The Virtual Lawyer and the Ethics of Law Blogs

The image of being led by a secretary down a richly-paneled corridor to an attorney's well-appointed office in a downtown law firm is fast becoming a thing of the past. An increasing number of attorneys (as are other professionals, including physicians) are relying on electronic communications to execute many of their routine and ministerial tasks of law practice. But now, tasks of law practice. But now, law practice itself has taken on a new dimension. In July 2008, Craig Johnson, a lawyer-entrepreneur, along with 14 partners, announced the startup of Virtual Law Partners, “an idea whose time has come.” He idea whose time has come.” He hoped to employ hundreds of stay-at-home lawyers across the country, who would retain a high percentage of their billings in return for contributing the remainder to handle overhead and administrative costs of the virtual law office. While this, in and of itself, is not new, the idea of establishing an attorney-client relationship entirely by electronic contact may be.

Between 2006 and 2008, the Internet was flooded with Web pages and new Web sites belonging to practicing lawyers or law firms with conventional law offices. Initially, they were formatted to appear as online advertisements, but increasingly they provided links to more substantive Web sites, both internal and elsewhere on the Web. Within a very short time, the entire idea appeared out of control, with bogus lawyers offering legal advice, real lawyers discussing their pending cases or puffing their credentials, and, increasingly, law blogs (often dubbed as “blawgs) that offered not only a forum for the presentation of information, but also superior marketing potential for law professionals.

A blog, or Weblog, is a simplistic online publishing platform or Web page that allows the posting/sharing (“self-publication”) of information easily accessible to anyone with Internet access. Blog sites also allow viewers to click on “links” to other related Web “links” to other related Web sites or Web pages from the initial blog site.

Critics of legal blogs believe they are essentially unprofessional and provide excessive opportunity for self-promotion. They also express concern for the potential (by concern for the potential (by general Internet users accessing legal blogs) of inducing reliance on legal information contained therein, without the benefit of fact-specific analysis. Without one-on-one communications with legal professionals, site users may attempt to apply the “general rule of law” to their own specific circumstances, and to their own peril or disadvantage. Other non-legal persons may attempt to use information gleaned from a legal blog to engage in dissemination of such information to others, possibly constituting the unauthorized practice of law.

Less palpable fallout also accompanies the major concerns. For example, in May 2008, the Wall Street Journal, in a story about lawyer blogging, made note of a juror who was dismissed from a panel in a 2007 securities fraud case after admitting to having read a San Diego lawyer's blog about the trial. The lawyer, who was posting day-by-day updates on the progress of the trial at his firm's Web site, was reportedly hired to write the blog by a law firm involved in some of the subject litigation. Also of concern is the opportunity for lawyers, using anonymous blogs, to spin their own cases. The Wall Street Journal article also reported the professional demise of lawyer Richard Fenkel, who was sued for defamation by two Texas attorneys after he used his blog to allege irregularities in a patent infringement case. (Patent attorney Raymond Niro, of Chicago, had offered a $15,000 bounty for anyone willing to expose Frenkel's identity.)

Lawyers and law firms, on the other hand, increasingly view legal blogs as an ideal forum to disseminate free information about developments in the law, and to provide the public with easy access to basic legal information without waiting for the availability of a lawyer. The fact that the lawyer or law firm may gain new clients or positive visibility from the exchange is viewed as an added benefit.

Lawyers and law firms make use of blogs for multiple reasons, although all of them are essentially intended to enhance the standing and visibility of the lawyer/law firm. For example, through the use of blog sites, lawyers are able to gain more superior clients, increase visibility among other legal peers, earn respect as subject matter experts (SMEs), obtain speaking engagements, or simply enhance their credibility. For these reasons, lawyer and law firm blogs have generally been treated as electronic forms of advertising. Clearly, they offer alternatives to television commercials and yellow-pages advertising.

The U.S. Supreme Court has long-since settled the issue that attorneys could “advertise” their services, in the form of protected commercial speech under the First Amendment of the U.S. Constitution Bates v. State Bar of Arizona, 433 U.S. 350 (1977). But law blogs create their own unique set of concerns. Law blogs are often used for more substantive dissemination of legal information, such as general articles of interest in certain areas of practice, e.g., probate, or discussions about cases. Clearly, not everything in law blogs is commercial speech, i.e., advertising. The legitimate exercise of legal journalism, enjoying a higher standard of First Amendment protection, must also be acknowledged. Accordingly, some state bar associations have modified attorney advertising rules to include computer access communications, while others have issued ethical opinions regarding online advertising and blogging. Since any person with Internet capability can access a legal blog, the propriety of blogging by law professionals raises multiple issues of ethics, liability, and regulation, just to name a few. As state bar associations scramble to update their rules for practicing attorneys within their respective states, most have come to realize early on that much more than just regulation of advertising is at stake.

In a majority of states, lawyer solicitation of prospective clients through real time communications like chat rooms are prohibited, such as outlined in the state bar ethical opinions of Florida A-00-1, Illinois 96-10; Michigan RI-276; Virginia A-0110; and Utah 97-10. The Illinois State Bar Association went even further, prohibiting any computer communication succeeding chat room interventions (like e-mails).

A majority of state bar associations have amended and/or are in the process of amending their advertising rules to generally classify attorneys' websites as advertisement tools subject to regulation. (Florida was considered the first state to address lawyer advertisements online.) Most bar associations require attorneys to submit a copy of their proposed advertising, along with a fee, to a state bar committee for approval. The trend has been to subject the main Web site page to advertising regulation, along with any testimonials (about past performance in cases) or biographical material on the attorneys.

However, legal blogs, especially those that are linked to the main Web page, are not subject to such regulation if they represent the legitimate exercise of legal journalism. That having been said, it is incumbent upon law professionals to post disclaimers that no attorney-client relationship is established by virtue of users gleaning legal advice and/or information from posted blogs. Moreover, any blogs that contain biographical information about lawyers or law firms are generally subject to regulations relating to advertising, as are blogs that discuss cases handled by the lawyers/law firms, and/or testimonials about results attained. Again, disclaimers explaining that no representation of same or similar results is intended by such discussion should be contained in the Web page.

In summary, the general rule is that attorney's websites are considered “communications,” but there is now a fundamental premise that legal blogs are permissible exercises in journalism. Therefore, blogs by law professionals, initially controversial, are now well within the realm of acceptable law practice in most jurisdictions. The general trend in regulating such blogs is that it is the substance of the communication, and not the form of transmission, that dictates any controls. Legal professionals who relay false, deceptive, or misleading information are subject to discipline, whether the communication takes the form of oral statements or written statements, including blogs.

According to the American Bar Association (ABA), “extrajudicial comments” made by lawyers during pending litigation have always been subject to discipline. The current rule already assesses whether statements “will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” regardless of the medium used for dissemination. Therefore no change to the ABA's Model Rules is currently contemplated to address extrajudicial statements made by lawyers on their Internet blogs.

Restrictions to legal blogs generally fall within three main categories. First, blogs that may contain statements regarding quality of services provided, biographical information, or information relating to past results are generally subject to state bar association rules on advertising. Blogs that explain areas of law, summarize recent cases, or offer opinions regarding the state of the law are considered legal journalism and as such, are protected by the First Amendment. Third, all blogs should contain disclaimers, not only warning viewers/users of the absence of an attorney-client relationship, but also warning viewers/users that past results do not guarantee similar results in prospective cases.

False, deceptive, misleading, or defamatory communications have always been subject to discipline, and the fact that they take the form of “blogs” does not alter that result. Users and viewers of legal blogs use the information at their own risk, as they would medical advice or information, and it is incumbent upon them to verify the credentials of the lawyer or law firm posting the blog.

In the complaint, defendants were accused of withholding evidence; intimidating witnesses; making public statements to smear the lacrosse players and cast them in an unfavorable light as privileged and spoiled white male students; and using a photo lineup that only featured Duke lacrosse players, so that the accuser would name only the players as her attackers. Among the demands for reform included in the suit was the request for an independent committee to publicly review complaints of police misconduct, improved police training, and a 10-year ban on Meehan or DNA Security Inc.'s involvement in any cases requiring a report or expert testimony. All defendants were accused of conspiring to keep the case alive while Nifong faced a tightly-contested election in the Democratic primary.

The three exonerated students and their families attended the disciplinary trial for closing arguments and the penalty phase. Their attorneys stated that they “were not done yet” with Nifong and hinted at criminal charges and a request for independent federal investigation into Nifong's conduct. In addition to losing his job as prosecutor and being disbarred from practicing law, Nifong also spent a night in jail after the trial judge found him in contempt of court.

Seattle Law Firm Requests Attorney Fee Award in Pro Bono Case

In 2007, the non-profit group Parents Involved in Community Schools (PICS), representing several Seattle-area parents of high school students, won its civil rights court battle against Seattle Public Schools when the U.S. Supreme Court ruled in its favor. PICS v. Seattle School District No. 1, 127 S.Ct. 2738. In that case, the high court ruled that the school district's admissions policy (which used race to assign high school students to popular schools) violated the Equal Protection Clause of the U.S. Constitution (under the 14th Amendment).

The parents/PICS were represented at all levels (U.S. District Court for the Western District of Washington, Ninth Circuit Court of Appeals, and U.S. Supreme Court) by the large Seattle-based law firm of Davis Wright Tremaine (DWT), which took the case on a “pro bono” basis. However, following the successful outcome at the Supreme Court level, DTWthen filed a petition to receive nearly $1.8 million in attorney fees, such fees being expressly authorized by federal statute in CIVIL RIGHTS CASES (42 USC 1988). The law firm's efforts to recover attorney fees were met with national media coverage debating the true meaning of “pro bono” legal work.

Technically, “pro bono publico” means “for the public good,” and state and federal bars consistently encourage practicing attorneys and law firms to perform as much “pro bono” representation of parties in need of legal services as possible. The general understanding of pro bono legal services is that they are performed free of charge, or at least without the expectation of compensation. In the Seattle case, had the parents lost their legal battle, DWT would not have charged legal fees for the nearly 6,000 hours of time and effort, expended over seven years, in pursuing a case it deemed meritorious.

But after winning the case for its clients at the highest level, DWT petitioned the court to collect the attorney fees, to which it argued it was entitled. Notwithstanding, DWT argued that its work on the case should still be considered “pro bono work” because its attorneys did not charge their client, PICS, but rather the losing party. Under 42 USC 1988, prevailing parties in civil rights litigation may petition a court for an award of attorney fees and associated costs against governmental entities found to have violated constitutional rights. In this case, the governmental entity was the Seattle Public School District.

For its part, Seattle Public Schools argued that such a large, powerful law firm as DWT did not need the funds to sustain the firm. Shannon McMinimee, assistant general counsel for Seattle Public Schools, remarked to Amanda Bronstad, reporting for the National Law Journal, that DWT's request for attorney fees was “disingenuous,” given that the law firm accepted the case on a pro bono basis.

But Mark Usellis, spokesman for DWT, opined that the school district was attempting to transform the fee request into a criticism against the law firm, rather than a remedy for wrongful conduct. Moreover, attorney Harry Korrell, who worked extensively on the case, opined that this would not even have been an issue had it been the American Civil Liberties Union (ACLU) or the Lawyers Committee for Civil Rights Under Law, that was requesting fees, both of which often petitioned for and received awards of attorney fees for similar cases and causes.

This was not the first time that a high-profile case challenged the fees collected by law firms in pro bono representation. Also in 2007, a federal judge in New York awarded nearly $1 million in attorney fees, costs, and interest to a law firm which had represented (on a pro bono basis) workers at a New York restaurant in an attempt to collect their unpaid tips. Although the law firm won the case, its request for attorney fees raised concerns, especially since the fees amounted to more than the workers received ($700,000). The judge in that case noted that the law firm had already discounted its legal fees and that only a large firm could have taken such a large case. Chan v. Triple 8 Palace, 03-CV-06048 (S.D.N.Y. 2007). Going back into the 1990s, attorneys who represented the woman who sued the State of South Carolina and The Citadel for refusing to admit her to the military school also petitioned for attorney fees under 42 USC 1988, even though they had taken her case pro bono. They were awarded $4.6 million. Esther Lardent, president of the Pro Bono Institute at Georgetown University Law Center, encouraged firms to seek legal fees in pro bono cases involving major public interest cases, if for no other reason than to serve as a deterrent to others.

In the Seattle case, according to DWT attorney Korrell, DWT filed a motion in the trial court in December 2007 for entry of a final order, pursuant to the Supreme Court decision and remand, declaring that the school district's admissions policy plan violated the Constitution. DWT also sought a narrow injunction against the school's returning to a similar policy at a later date, and finally requested attorney fees. The school district opposed, filing a crossmotion to dismiss the entire case as moot, since it alleged it had dropped its “illegal” plan. Responsive and reply briefs were due in late June 2008.

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