Friday, May 16, 2008

Query to fellow practitioners: are we under an obligation to bring the May 15th order in Capitol v. Thomas to the attention of the Court?

Query to fellow practitioners:

The May 15th order entered yesterday in Capitol v. Thomas appears to indicate a knowing failure on the part of Holme Roberts & Owen to disclose to the Court contrary controlling authority, a duty which had been activated by defendant's counsel's failure to cite the case.

If this occurred, it would be a violation of the Disciplinary Rules. See, e.g. ABA Rules of Professional Conduct, Rule 3.3(a): “A lawyer shall not knowingly . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."

I do not know for a fact that this occurred, but

(a) I assume Judge Davis is correct in saying that Holme Roberts & Owen failed to disclose the National Car Rental case to the Court, and

(b) I do know for a fact that Holme Roberts & Owen was well aware of the case.

Question: In connection with the pro haec vice motions that Holme Roberts & Owen makes on a daily basis, are we, as attorneys, not obligated to bring the Capitol v. Thomas order to the attention of the Court?

I have resolved the question in the affirmative, and have notified the judge in two (2) cases in which pro haec vice motions by Holme Roberts & Owen are pending.

I would be interested in your input.

-R.B.

May 16, 2008, Letter of Ray Beckerman to Hon. David G. Trager and Hon. Robert M. Levy (Elektra v. Schwartz)(re pro haec vice motion and Capitol v. Thomas order)*
May 16, 2008, Letter of Ray Beckerman to Hon. David G. Trager and Hon. Robert M. Levy (UMG v. Lindor)(re pro haec vice motion and Capitol v. Thomas order)*



Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

7 comments:

Anonymous said...

I think there's another important ethical question here. Do you, holding a reasonable belief that HR&O was aware of the contradictory controlling authority, have an obligation to bring their violation of rules of professional responsibility to the attention of the pertinent bar association? I would say yes.

Ray Beckerman said...

Well, anonymous, if you're a lawyer, and you know about it, why aren't you doing it?

Anonymous said...

Are ABA rules included in the FRCP, or any local rules? If not, could someone possibly explain how this helps any of the cases? If it costs you your ABA membership, do you lose the right to practice law?

Even if it affects the counsel of record...how does it change...anything...since some other person will just become "of record" on the case

-B

Stevo said...

Model Rules of Professional Conduct
Maintaining The Integrity Of The Profession
Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Ray Beckerman said...

Stevo, if you're an attorney why aren't you doing it?

Ray Beckerman said...

I rejected a comment because it misread my question.

My question relates to the following scenario:

-practitioner is representing a defendant in an RIAA case;

-a motion for pro hac vice admission is made on behalf of an attorney from Holme Roberts & Owen;

-does the practitioner have a duty to bring Capitol v. Thomas to the attention of the court, in connection with the pro hac vice motion, since the May 15th order suggests a possible violation by HRO of a disciplinary rule in its failure to bring to the attention of the court contrary controlling authority?

Anonymous said...

But if you truly believe they are in violation of this rule, why wouldn't you say so?

Why would you say "we have no opinion"??

Nothing you have said to those 2 judges has worked yet, why not say "the pro hac vice motion should be denied, and here is why"?

-B