Wednesday, March 07, 2007

from legal blog watch

Legal Blog Watch

Juror Blogs Complicate Trials

The jury foreman wrote on his blog that the upcoming trial would require him to "listen to the local riff-raff try and convince me of their innocence." He was surprised that he was chosen for the jury, he wrote, given his strong beliefs about the police and God. None of that was enough for the trial judge -- or the New Hampshire Supreme Court -- to throw out the conviction, but, as the National Law Journal reports in an article to be published Monday, the case illustrates a new area of concern for lawyers in criminal and civil trials. Says Chester, N.H., lawyer Mark Sisti, who represented the defendant in the case:

"It's the kind of stuff that scares you because you don't know what's going on. You don't know if the jurors are communicating via this type of media or device after they are released each day, you don't know what they are picking up. It's not TV or radio, this is a whole new medium."

Many bloggers, the article suggests, decide for themselves not to blog about their jury duty, even absent instructions from the judge. But others, thanks to courthouse Internet access, blog live from the jury room. Clay S. Conrad, a Texas lawyer who writes the blog Jury Geek, told NLJ reporter Vesna Jaksic that blogging by jurors raises interesting questions. A juror is not supposed to discuss the case, he notes, but is blogging a discussion? Whether it is or not, he says, it could later produce evidence that a juror has prejudged the case.

In the New Hampshire case, the Supreme Court found no error because the blogger's posts were not shared with his fellow jurors and because he assured the trial judge that he had followed his instructions once the jury was seated, as Molly McDonough reported in October in the ABA Journal eReport. But for lawyers, the moral of the story may be that here is yet another reason why they must understand and pay attention to blogging -- and ask about it in voir dire.

Posted by Robert J. Ambrogi on March 6, 2007 at 02:28 PM | Permalink | Comments (0)

Many Lawyers Behind USPTO Pilot

Lawyers and bloggers played roles in helping to launch the U.S. Patent and Trademark Office's pilot project for public review of patent applications via the Internet. As Washington Post writer Alan Sipress reported yesterday, the USPTO pilot will allow some companies submitting patent applications to agree to have them reviewed via the Internet. It is called The Peer to Patent Project, and, as Law Blog noted yesterday, it has been spearheaded by New York Law School professor Beth Simone Noveck, director of the school's Institute for Information Law & Policy.

A broad array of other lawyers and bloggers are serving as advisers to the project. The list includes Robert Barr, executive director of the Berkeley Center for Law and Technology; Dennis Crouch, author of the blog Patently-O; John Duffy, George Washington University law professor; Will Fitzpatrick, corporate counsel to the Omidyar Network; Alan Kaspar, partner at Sughrue Mion; Stephen Kunin, special counsel at Oblon Spivak; Mark Lemley, director of the Stanford Program in Law, Science and Technology; Michael V. Messinger, director of Sterne, Kessler Goldstein, & Fox; Gideon Parchomovsky, University of Pennsylvania Law School professor; Arti K. Rai, Duke University Law School professor; and Steven  S. Weiner, partner at Davis Polk & Wardwell. The USPTO even consulted CmdrTaco, the founder of Slashdot, according to Wired News.

The pilot project is an interesting idea, says ProfessorBainbridge, one that other administrative agencies might emulate. He writes:

"For example, like all other federal agencies, the SEC currently invites public comments on rulemaking proceedings, but lacks the community rating system. Given the widely available technology for creating such a system, however, there's no reason why the SEC couldn't follow in the PTO's footsteps. Comments by respected securities law academics (ahem) presumably would get pushed up, while duplicate astroturf comments presumably get pushed down. Or maybe not, as we might see astroturf campaigns to affect the ratings. Yet, it seems a worthwhile experiment."

Follow the project's progress through its blog

Posted by Robert J. Ambrogi on March 6, 2007 at 02:23 PM | Permalink | Comments (0)

SOX: Unintended Consequences for Laywers

Norm Pattis was the first to raise the red flag. On Feb. 16 at his blog Crime & Federalism, he noted the indictment of a Connecticut lawyer "in what appears to be a test case of a Sarbanes-Oxley amendment to the federal criminal code." The indictment, announced Feb. 16 by Connecticut U.S. Attorney Kevin J. O'Connor and reported the same day in the Hartford Courant, charged Greenwich lawyer Philip D. Russell with obstructing justice and destroying evidence concerning child pornography. The government alleges that Russell destroyed a church computer allegedly containing child porn downloaded by a church employee. What made the charge novel was the government's use in this child-porn probe of a law designed to target corporate wrongdoing. As Pattis explained then:

"Russell ... has been charged with violating 18 U.S.C. Section 1519. That provision makes it a crime to tamper with potential evidence in 'contemplation' of a federal investigation. Unlike pre-Sarbanes-Oxley tampering statutes, there need not be an investigation in place or even imminent as a predicate for prosecution. The statute appears to criminalize what was once considered prudence by defense counsel. The mens rea for such crimes is now virtually limitless."

With a new report this week by Associated Press writer John Christoffersen, Arrest Sparks Worries over Implications of Corporate Law, the case is attracting even wider attention. Christoffersen writes:

"The arrest of a prominent attorney on charges of destroying evidence in a child pornography investigation is raising alarm bells that a law targeting corporate accounting schemes could be used to prosecute lawyers over work done on their clients' behalf."

He quotes New York University law professor Stephen Gillers, who says:

"Every criminal defense lawyer in the country has to be alarmed at the indictment. It's going to upset a lot of assumptions about how lawyers can represent clients. I think this is a boundary-pushing case."

And in the Stamford Advocate, reporter Martin B. Cassidy says the case could become a landmark test of SOX and could set a precedent making criminal defense lawyers vulnerable to federal charges. He quotes Mark DuBois, chief disciplinary counsel for the Connecticut Bar Association, who says:

"The question is what's evidence and when does something become evidence? How prescient does a lawyer need to be? Now if you guess wrong you've got big problems, because it is a serious crime."

Pattis says the charges raise many questions for which he has no answers.

"Once again, the law of unintended consequences results in overcriminalization: A law designed to prevent accountants and lawyers from shredding forms has become a tool in child pornography prosecutions. No one will care much about that. But what happens tonight if you find cocaine in your child's bedroom?"

Posted by Robert J. Ambrogi on March 6, 2007 at 02:17 PM | Permalink | Comments (0)

Saludos cordiales
Renato Sánchez 3586 dep 10
Santiago, Chile