Lawyers as Litigants in Boston

Lawyers as Litigants in Boston

Yesterday brought two appellate opinions from Boston-based courts -- one federal, one state -- in which lawyers participated not as advocates, but as litigants. One, from the state's highest court, the Supreme Judicial Court, addressed the applicability of an anti-SLAPP statute to the lawyer's attempts to recover his legal fees. The other, from the 1st U.S. Circuit Court of Appeals, involved a divorcing lawyer's attempt to keep his ex-wife from getting a stake in his retirement plans.

The SJC decision, Wenger v. Aceto, involved a case that pit the lawyer, Gregory J. Aceto, against his former client, a physician. When the client's check to Aceto bounced and the client failed to accept delivery of Aceto's formal demand for payment, the lawyer asked a local court to issue a criminal complaint against the client for larceny by check. The request was denied, but it got the attention of the client, who sued his former lawyer for malicious prosecution and abuse of process. The lawyer filed a motion to dismiss based on the state's anti-SLAPP law -- the "strategic litigation against public participation" law that is intended to protect the right to petition the courts. The SJC granted the lawyer's motion to dismiss (although it allowed the client's consumer protection claim to continue). "Although we may dislike or disfavor an attorney's choice to seek a criminal complaint against a former client in an attempt to collect payment for past services," Justice John M. Greaney wrote for the SJC, "we cannot deny any citizen the constitutional right to petition the courts to seek legal redress."

In the case decided by the 1st Circuit, Geiger v. Foley Hoag LLP Retirement Plan, Foley Hoag commercial litigator David R. Geiger went to federal court on the heels of a contentious state court divorce that assigned his ex-wife an interest in his three retirement plans. He filed suit under ERISA seeking to enjoin the plans' administrator from making the transfer to his ex-wife. She intervened and was successful in having the case dismissed. On appeal, the 1st Circuit affirmed the dismissal, concluding that Geiger, who represented himself, failed to protect his pension rights in the state court proceeding, "on the mistaken belief that the federal courts had exclusive jurisdiction."

For lawyers as litigants, that's one win, one loss.

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Posted by Robert J. Ambrogi on March 28, 2008 at 09:27 AM | Permalink | Comments (0)

'Neutral' Sites as Fronts for Firms

At the Fortune blog Legal Pad, Roger Parloff points to perhaps the most recent example of what strikes me as an increasingly common and problematic trend -- PI firms setting up seemingly neutral front sites devoted to health, pharmaceutical or other issues they handle. Parloff's example is myMeso, a site about mesothelioma that, he writes, "looks like it's probably run by a nonprofit, 501(c)(3) group devoted to providing dispassionate information about the dreaded, fatal, asbestos-linked cancer." In fact, the site is operated by Alabama plaintiffs' firm Beasley Allen Crow Methvin Portis & Miles and written by employees of the firm. Parloff had to "scroll down a ways" before he found a faint, watermark-like box indicating the site was a "public awareness web site sponsored by Beasley Allen."

Since Parloff's post, the firm has modified the page so that its sponsorship is prominently identified. But this is only one example of many. Pick a disease, add dot-com, and you're likely to find yourself at a site portrayed as a victims' or consumers' resource but run by a law firm. Some are transparent, some are not. There is Mesothelioma.com, Asbestos.com and plenty of others. A variation on this theme are lawyer referral sites such as the Top Lawyers sites I wrote about here in October ('TopLawyers' Floods YouTube, Web).

A Beasley Allen partner tells Parloff he does not consider the site confusing to consumers. Ethics specialists say the site may be OK under ethics rules because it does not directly solicit clients -- and may even be protected by the First Amendment. Notably, Parloff writes, several legal-ethics experts initially saw no problem with the site, "since none realized that the site was run by a law firm until I told them."

I am all for law firms disseminating useful information to consumers. But they should be up-front about it. If a firm sets up a set to provide information, it should lay claim to it, not lay silent behind a hidden wall.

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Posted by Robert J. Ambrogi on March 28, 2008 at 09:12 AM | Permalink | Comments (0)

USPTO Chief Slams Bad Patents

No less an innovator than IBM once filed a patent on a system for providing restroom reservations. Or, as Ars Technica more crassly describes it, "Big Blue wanted a patent on taking a number to use the can." According to the post, Jon Dudas, the director of the U.S. Patent and Trademark Office, in a speech yesterday at the Tech Policy Summit in Hollywood, cited that example as symptomatic of the problems facing his office.

While companies generally want patents in order to protect intellectual property, that's not the only a reason for seeking patents. Dudas noted that Wall Street loves it when companies file patents, since patent numbers can be used as an easy proxy for innovation and R&D work. The sheer number of patents can also make it easier to strike cross-licensing agreements with other companies, as it makes a given patent portfolio look broader and stronger.

While no one would argue that bad patents "promote innovation," they do often make business sense, Dudas told the summit's attendees. That is why the number of bad applications is surging and the percentage of patent approvals is dropping dramatically. But how should the surge be slowed? One proposal being floated is to raise the filing fee significantly, but Dudas believes this would be counter to the USPTO's mission to be open to all inventors. He has other ideas for stemming the surge:

Dudas wants to see the barrier to filing raised in less costly ways, such as requiring minimal searching for similar or identical previous patents, and he wants applicants to describe exactly how their invention expands the state of the art; in other words, make a strong argument that your idea is demonstrably better than what's already out there. These changes alone will 'drop out a significant portion of bad applications.'

Lurking in the background is the controversial patent reform bill still making its way through Congress. Will it pass? Dudas told his summit audience that he gives the bill a better than 50 percent chance of success during this session of Congress. Meanwhile, if you need to use the restroom while you're waiting, e-mail IBM for a number.

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Posted by Robert J. Ambrogi on March 28, 2008 at 09:03 AM | Permalink | Comments (0)

Martin Takes Helm of Bingham in Boston

Both The Boston Globe and Massachusetts Lawyers Weekly have the news that Ralph C. Martin II has been named managing partner of the 270-lawyer Boston office of Bingham McCutchen, putting to rest speculation that the former Boston district attorney would run for mayor of that city in 2010. Both reports also say that Martin is the first black managing partner at a large Boston law firm. "I've been joking with Ralph that I see his new job as mayor of the firm's Boston office," Bingham Chairman Jay S. Zimmerman told the Globe. "What that means is he's charged with listening to people, understanding their needs and concerns, and making sure our Boston office remains a vibrant internal community."

Martin, 55, was district attorney of Suffolk County, where Boston is located, from 1992 to 2002 -- elected to that office as a Republican. He'd been exploring a mayoral run for several months. In addition to running the Boston office, he will continue to practice law and to serve as managing principal of the firm's government relations offshoot, Bingham Consulting Group.

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Posted by Robert J. Ambrogi on March 28, 2008 at 08:57 AM | Permalink | Comments (0)

God's Lawyer Pens Legal Help Book

When a legal self-help book is promoted as coming from God's legal department, you can't ask for a higher authority. That's the pitch for the new book from "Christian lawyer" Stephen L. Bloom, The Believer's Guide to Legal Issues, due out April 1. "I've seen people, including Christian believers, getting caught up in very painful legal nightmares, damaging their relationships, making themselves miserable, all by following traditional secular legal advice and values," Bloom says. "So I've written this book to empower people to rise above the mindset of greed and revenge so prevalent in the law, to draw them instead to God's vision of lasting peace, restored relationships and true justice."

A partner at the firm of Irwin & McKnight in Carlisle, Penn., Bloom is an adjunct professor of business at Messiah College, a legal columnist for Good News Daily and the former host of a radio program, "Practical Counsel -- Christian Perspective." According to his personal Web site, he regularly speaks at churches, colleges and professional schools, and elsewhere, offering advice on how audiences can "integrate Biblical Christian values and perspectives into their real-life decisions." His new book, according to information on this site, addresses common legal issues such as real estate, wills and trusts, bankruptcy, divorce, litigation and business. His goal, he says, is to discuss these issues from a Biblical perspective:

By presenting the unique and practical Christian perspective of a lawyer informed by God's rich array of relevant scriptural wisdom and tempered by two decades of representing and counseling real life clients on the very same kinds of legal situations its readers now face, this book will release multitudes of Christian believers from the tangled web of moral confusion and ethical compromise so often promoted and exacerbated by lawyers and the legal establishment.

Among readers' reviews of the book at Christianbook.com, there are the good words any writer might pray for. One reviewer calls it "a page turner -- easy to read and yet powerful in applying Scripture to real life situations." No word, however, on feedback from the legal department's Chief Legal Officer.

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Posted by Robert J. Ambrogi on March 28, 2008 at 06:53 AM | Permalink | Comments (0)

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