LACBA Ethics Panel Urges State Bar to Junk Civility Standards

By TINA BAY, Staff Writer

The State Bar’s Attorney Civility Task Force should not issue its proposed “standards of civility and professionalism” at all, a spokesperson for a Los Angeles County Bar Association committee told the task force yesterday.

Speaking on behalf of LACBA’s Professional Responsibility and Ethics Committee at a public hearing yesterday in downtown Los Angeles, local malpractice defense attorney JoAnne Earls Robbins said the standards “will be inevitably be considered standards that will lead to disciplinary sanctions.”

Robbins, a former State Bar Court hearing judge and State Bar prosecutor, explained that the “should” language used in the standards—for example, “A lawyer should not engage in offensive conduct or otherwise disparage the intelligence, integrity, ethics, morals or behavior of other counsel…”—would be confusing to the average practitioner.

Details here from the Metropolitan News-Enterprise.

U.S. News & World Report's Law School Rankings Released

Click here to view the latest rankings.

McLean Students Sue Anti-Cheating Service

Plaintiffs Say Company's Database of Term Papers, Essays Violates Copyright Laws

Two McLean [VA] High School students have launched a court challenge against a California company hired by their school to catch cheaters, claiming the anti-plagiarism service violates copyright laws.

The lawsuit, filed this week in U.S. District Court in Alexandria, seeks $900,000 in damages from the for-profit service known as Turnitin. The service seeks to root out cheaters by comparing student term papers and essays against a database of more than 22 million student papers as well as online sources and electronic archives of journals. In the process, the student papers are added to the database.

Two Arizona high school students also are plaintiffs. None of the students is named in the lawsuit because they are minors.

"All of these kids are essentially straight-A students, and they have no interest in plagiarizing," said Robert A. Vanderhye, a McLean attorney representing the students pro bono. "The problem with [Turnitin] is the archiving of the documents. They are violating a right these students have to be in control of their own property."

Details here from the Washington Post.

Options Morass Deepens at Sonsini Firm

Wilson Sonsini Goodrich & Rosati has spent the past year trying to back away from the metastasizing stock option backdating mess, but an internal e-mail now in regulators' hands is making it difficult.

In a 2004 message, Wilson Sonsini lawyer Roger Stern asks his partner to dig up a document from the time when a client was "using the time machine to pick low strike prices."

That client, semiconductor maker KLA-Tencor, has since restated its earnings by $370 million to account for backdating its options during the tech boom, when Wilson Sonsini chief Larry Sonsini was the company's corporate secretary.

The firm was forced to cough up the internal exchange by a subpoena from the Securities and Exchange Commission, said people who've seen the e-mail.

That subpoena was sent to the firm in January as part of the government's probe of KLA's options. And it kicks off what promises to be an unpleasant process for Silicon Valley's top firm.

Details here from Justin Scheck at The Recorder via Law.com.

Justice Breyer on NPR

Supreme Court Justice Stephen Breyer will appear on this weekend's broadcast of the NPR program "Wait, Wait . . . Don't Tell Me." If you live in the San Francisco Bay Area, you can hear it on KQED 88.5 FM at 11:00 a.m. on Saturday March 24th.

SPOILER ALERT!!! The program has already been recorded, and NPR has already released a transcript. If you don't want to read about what happens on the program prior to hearing it, then READ NO FURTHER. If you don't give a crap, feel free to read on:

WASHINGTON - Here's what Justice Stephen Breyer revealed about the Supreme Court in his appearance on a radio quiz show: His judicial robe gathers no lint because it's synthetic.

When it came to cracking wise, Breyer held his own with a panel of people who are paid to be funny on National Public Radio's "Wait, Wait ... Don't Tell Me."

Being the funniest Supreme Court justice, he said, "is like being one of the shortest tall people."

On why he even agreed to answer questions outside his area of expertise in the humbling, and often embarrassing, "Not My Job" segment: "Well, it was my sister-in-law who wanted me to do it, and I wanted peace in the family."

The show was taped Thursday and will air this weekend on NPR stations. NPR provided a transcript on Friday.

Breyer spent a half-hour or so chatting with host Peter Sagal and panelists Luke Burbank, Paula Poundstone and Mo Rocca.

You can read the rest of the article here from the AP via Yahoo News. Justice Breyer seems to be a pretty funny guy. (I'm familiar with his brother, U.S. District Court Judge Charles "Chuck" Breyer (N.D. Cal), and I've observed that he is very funny indeed, at least when amongst friends and in private).

UPDATE: A transcript of Justice Breyer's appearance is here. Or you can listen to it online at this link. It is indeed pretty funny. (via Bashman)

Scholar Wins Right to Publish Joyce Material in Copyright Suit

James Joyce Estate Agrees to Settle

STANFORD, Calif.--(BUSINESS WIRE)-- Stanford Law School’s Fair Use Project announced today that Stanford University Acting Professor of English Carol Shloss won the right to publish her scholarship on the literary work of James Joyce online and in print based on a settlement agreement with the Joyce Estate. The landmark case Shloss v. Estate of James Joyce was filed last year on the eve of Bloomsday—the annual Joyce celebration that takes place on June 16 to memorialize the day that Leopold Bloom, the main character in Joyce's Ulysses, made his walk through Dublin. The case sought to establish Shloss’s right to use copyrighted materials in her writing under the “fair use” doctrine.

Relying on many primary sources, Shloss’s work focuses on the life of Lucia Joyce: her unacknowledged artistic talent, her tragic life spent mostly in mental institutions, and the unrecognized influence she exerted over her father’s work. Upon learning of Shloss’s scholarship, the Joyce Estate—controlled by Joyce’s grandson Stephen James Joyce—denied her permission to quote from any of the materials the Joyce Estate controlled and repeatedly threatened Shloss with a copyright infringement suit.

The Fair Use Project and Cyberlaw Clinic filed a lawsuit on behalf of Shloss in June 2006, asking a federal court to find that she has the right to use quotations from published and unpublished material relating to James and Lucia Joyce on a scholarly website.

This week, Stephen James Joyce and the Joyce Estate entered into a settlement agreement enforceable by the court that lets Shloss publish this material electronically and also publish a printed supplement to her book “Lucia Joyce: To Dance in the Wake.”

“The Joyce Estate has been extremely aggressive in enforcing copyrights and has threatened scholars with lawsuits even though their work qualifies under the ‘fair use’ doctrine of copyright law,” explained Anthony Falzone, who is the executive director of the Fair Use Project and who led the litigation team that included lawyers from Stanford Law School’s Center for Internet and Society and Cyberlaw Clinic, as well as the law firms of Howard Rice Nemerovski Canady Falk & Rabkin, and Keker & Van Nest. “Our client got exactly what she asked for in her complaint, and more.”

“I am extraordinarily happy that Stanford's Fair Use Project has enabled an academic to do her work," said Lawrence Lessig, Stanford Law professor and director of the Stanford Center for Information and Society (CIS). "But this is just the first of a series of cases that will be necessary to establish the reality of creative freedom that the ‘fair use’ doctrine is intended to protect in theory. We will continue to defend academics threatened by overly aggressive copyright holders, as well as other creators for whom the intended protections of ‘fair use’ do not work in practice. I am hopeful that this is the last time this defendant will be involved in an action like this. But it is only the first time that we will be defending academics in these contexts."

Details here from Business Wire. And congratulations to Anthony Falzone, who used to be a colleague of mine.

Lawsuit Over YouTube Video: It's What Everyone's Watching

A look at what's at stake in Viacom Inc.'s $1 billion copyright infringement suit against Google.

SHERMAN OAKS, CALIF. - At an Internet cafe here, Barry Delatto toggles his computer screen from stock prices to e-mail and finds a URL for YouTube, the free website where users can post and watch video clips.

"It's [an e-mail] from my girlfriend," he says, clicking on a clip from the "Colbert Report," a mock-news TV show on Comedy Central. "I better watch this before the courts shut YouTube down. Either that, or make them pay so much nobody will do this anymore."

It's a scene repeated so often – 160,000 free video clips viewed at least 1.5 billion times – that Comedy Central's parent company, Viacom Inc., is asking the courts to make YouTube stop unauthorized postings of copyrighted video. . . .

[V]iacom's lawsuit, filed March 13 in a US District Court in New York, seeks $1 billion in damages and asks the court to make YouTube, acquired by Google last year, halt the practice.

Details here from Daniel B. Wood of the Christian Science Monitor.

Metadata Minefield

Opinions disagree on whether it's ethical to look at hidden electronic information

One of the first things Vincent Polley does after receiving a document from op­posing counsel is look for metadata, the hidden information embedded in computer files.

“When I get a document, I take a look for a couple of things, like who it was written by and the number of revisions it went through,” says Polley, who practices information technology law at Dickinson Wright in Bloomfield Hills, Mich., and serves on the council of the ABA Section of Business Law. “You can learn a lot about what someone is sending you that you can’t see by just looking at a document.”

The potential value of metadata is hard to ignore. The Pentagon, the British government and a number of public figures were all embarrassed when metadata revealed that their public statements were at odds with private communications. . . .

[T]o Polley’s thinking, a lawyer is being remiss if he or she doesn’t look at metadata. But is snooping for hidden data in electronic documents from the other side also unethical, or at least a bit unseemly?

Details here from Jason Krause at the ABA Journal.

Seventh Circuit Addresses Dueling Farting Dolls

Meet Pull My Finger® Fred. He is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fred is a plush doll and when one squeezes Fred’s extended finger on his right hand, he farts. He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as “Did somebody step on a duck?” or “Silent but deadly.”

Fartman could be Fred’s twin. Fartman, also a plush doll, is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fartman (as his name suggests) also farts when one squeezes his extended finger; he too cracks jokes about the bodily function. Two of Fartman’s seven jokes are the same as two of the 10 spoken by Fred. Needless to say, Tekky Toys, which manufactures Fred, was not happy when Novelty, Inc., began producing Fartman, nor about Novelty’s production
of a farting Santa doll sold under the name Pull-My-Finger Santa.

Tekky sued for copyright infringement, trademark infringement, and unfair competition and eventually won on all claims. The district court awarded $116,000 based on lost profits resulting from the copyright infringement, $125,000 in lost profits attributable to trademark infringement, and $50,000 in punitive damages based on state unfair competition law. The district court then awarded Tekky $575,099.82 in attorneys’ fees.

So writes Judge Diane P. Wood in JCW INVESTMENTS, INC., d/b/a Tekky Toys, v. NOVELTY, INC. (7th Cir. Mar. 20, 2007) No. 05-2498, affirming the judgment. (via Bashman)

Date in Jail for Drugging Beer

Quick-witted S.F. pair nail man slipping his companion a mickey

It looked for all the world as if the couple on a date -- he was darkly handsome and a little older than the pretty, petite blonde with the Russian accent -- were having a great time together.

"A really great time," their waitress, Karri Cormican, recalled thinking. "She was facing him, had one of her legs up on the bench seat." Good body language.

So it came as a shock that after the woman left the window-side table to visit the restroom, Cormican saw the man shake a white powder into the Hefeweizen beer he had ordered for his date.

"Did I really see that?" Cormican asked herself. "Why would he do that? It seemed like they were having fun."

All the gory details and two heros' stories here, from the San Francisco Chronicle. The perp/perv's name is Joseph Szlamnik. The judge just sentenced him to a year in jail, with six months suspended.

I hope that a worse sentence for Joseph Szlamnik is that any internet search for his name will forever turn up this website and this article. And no, Mr. Szlamnik, I will not delete this post from my archives, so don't bother asking.

Odd Obituary Coincidence

The AP's current top obituary article contains the following two entries:

DALLAS (AP) -- Wilford ''Crazy Ray'' Jones, the boisterous Dallas Cowboys fan who energized crowds for decades with his cowboy getup and sideline cheerleading, died Saturday. He was 76.

Jones died at his home, said Tracy Moberly, a friend of the family. Diabetes and cardiovascular disease were listed as the causes of death, according to the Dallas County medical examiner's office.

Known as the Cowboys' unofficial mascot, Jones entertained fans with sideline antics and magic tricks while wearing his signature chaps, six-shooter and blue vest.

DAVIE, Fla. (AP) -- Denny Sym, also known as ''Dolfan Denny,'' who cheered on the Miami Dolphins for 34 years as a one-man sideline show, died Friday, his wife Ingrid said. He was 72.

Sym had been battling kidney disease and cancer for several years.

Sym led Miami crowds in cheers and chants in his glittering orange and aqua hat since the Dolphins' first game in 1966, starting in the stands.

Both men were given special treatment by the teams they cheered. I guess it was a bad weekend to be a fanatical football booster. Details here from the AP.

Police DNA Collection Sparks Questions

BUFFALO, N.Y. (AP) - When a 60-year-old man spat on the sidewalk, his DNA became as public as if he had been advertising it across his chest.

Police officers secretly following Leon Chatt last August collected the saliva - loaded with Chatt's unique genetic makeup - to compare with DNA evidence from the scene of an old murder they believed he'd committed.

On Feb. 1, Chatt was charged in one of Buffalo's oldest unsolved cases, the 1974 rape and stabbing of his wife's stepsister, Barbara Lloyd.

While secretly collecting a suspect's DNA may be an unorthodox approach to solving crimes, prosecutors say it crosses no legal boundaries - that when someone leaves their DNA in a public place via flakes of skin, strands of hair or saliva, for example, they give up any expectation of privacy.

But the practice has raised questions from Washington state to Florida, where similar collections are under scrutiny.

Details here from the AP via My Way News.

Spector's Past to Figure in Trial

The music producer's reputation for mixing guns and alcohol could hurt him. Jury selection begins Monday.

Phil Spector never denied he wagged a pistol at a member of the Ramones or fired off a shot during a studio session with John Lennon. The music industry loves edgy characters, especially when they churn out chart-topping hits as the influential music producer once did. But now, with his murder trial approaching, his reputation for drunken gunplay is coming back like a vicious ricochet.

"He always had that habit of showing off guns when he was drinking; it's what he did, it was his thing," said Larry Levine, the recording engineer who sat next to Spector in the studio for years. "And now, well, all of that is going to be part of this trial. I don't know what happened on that night, but the jury will have to figure it out."

Many fascinating details here from the Los Angeles Times.

State of the Second Amendment: Does It Apply in the District of Columbia?

Recently, the majority on a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued the first-ever federal appellate court ruling that invalidated a gun control law based on the so-called "individual right" interpretation of the Second Amendment to the U.S. Constitution.

Because other federal appellate courts have rejected the "individual right" understanding in favor of a so-called "collective right" view essentially limiting the Second Amendment's protections to organized militias, many commentators have remarked that U.S. Supreme Court review of the D.C. Circuit's ruling is almost certain to occur.

But even if the Supreme Court agrees to hear the case, there remains a potentially significant obstacle that may prevent the justices from using the case to resolve whether the "individual right" or "collective right" view of the Second Amendment is proper. The obstacle, which is the central focus of D.C. Circuit Judge Karen LeCraft Henderson's dissenting opinion, is that the Second Amendment may not apply to the District of Columbia.

Details here from Howard Bashman via Law.com. The D.C. Circuit's opinion is Parker v. District of Columbia.

What if Alberto Gonzales and Harriet Miers Had Been Confirmed to the Supreme Court?

Nearly lost in all the hootin' and hollerin' about U.S. Attorney-gate is a delicious truth: Two of the worst offenders in this whole mess were at the top of President Bush's list to fill the U.S. Supreme Court vacancies last year. That's right, friends, had Bush had his way in the fall of 2005, we'd be looking today at a court fearlessly led by a Chief Justice Alberto Gonzales and starring an Associate Justice Harriet Miers.

Stop and savor the possibilities. Think what the past year at the high court would have looked like had the president managed to seat his two favorite lawyers. Just imagine, with me, the delicious scandals that might have ensued.

Details here from Dahlia Lithwick at Slate. (via Bashman)