Monday, February 9, 2009

Legal ethics mavens weigh in on Tenenbaum 'wikibrief'

The experts at Legal Ethics Forum have begun to weigh in on Joel Tenenbaum's "wikibrief," considering the implications of the open editing process on professional responsibility rules including bans on the unauthorized practice of law ("UPL") and the potential waiver of privilege. They're intrigued, amazed, and even a bit befuddled by this development, and have posted a few thoughts.

Says Mercer University Professor David Hricik:
I can't believe that making language clearer is the practice of law.... But, providing legal advice would be. Where is the line would seem to be the issue... To me the more critical issue is: what about the privilege waiver issue of posting a draft brief? In my practice days, we never let those things see the light of day. Is there now subject matter waiver?

[B]y providing legal advice (let's assume), aren't you creating an implied attorney client relationship? Gratuitous, sure, and perhaps unknown to the actual client...? I dunno.

Interesting can of worms.
And Hricik believes that, at least in certain states, waiver of privilege could be an "enormous problem."

Fish & Richardson
Special Counsel and Director of Ethics & Conflicts John Steele (from whom I took a professional responsibility class in law school several eons before anyone had heard of a wikibrief) is floored:
Amazing development.... If I comment publicly on the brief, I don't think I'm holding myself out to anyone as representing anyone. If I'm not representing anyone, and if I'm not holding myself out as a laweyer, wouldn't it be hard to claim that I'm committing UPL?

Second, if the licensed lawyer supervises the brief in the sense of deciding what gets in, and what's left out, of the final brief, is that enough supervision to avoid UPL under the "under the supervision concept"?

Third, I think it's a waiver, but if I were the judge I'm not sure I'd find a broad waiver. The opposition should get all the suggested edits, but why give them anything more. It's not as if a narrow waiver deprives them of anything unfairly.

Fourth, you'd need client consent and the final product would have to be competent, but those can be managed.

I wonder if Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, had any idea what he was stirring up.

1 comment:

  1. What just hit me--
    Prof. Nesson's strategy is much more akin to the publication of a scholarly work than it is a brief. After all, when you're writing a law review article, this is what you do... get an idea, maybe e-mail back and forth with a colleague a bit, get it in a reasonably final format, and put it on SSRN for your other colleagues to read and comment upon. I think Nesson was following the same procedure here.


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