Despite the judicial smackdown, the recording of opposing counsel and the judge, and the public airing of internal legal discussions, Tenenbaum appears to be perfectly happy with the representation he's receiving (for free).
And just what about Nesson's habit of posting draft legal filings, internal deliberations, and other material that lawyers normally hold close to the vest? Did Nesson have permission from Tenenbaum to do that? Explains Tenenbaum:
Professor Nesson has an interesting paradigm, an almost radical transparency to his actions, which is only accentuated by the plaintiffs’ penchant for secrecy. If I have anything personal I’d like to be kept private, he respects that. As for the legal strategy in the case, he knows I entrust him to make the best decisions concerning the privacy of the case and court filings. Does this give away too much?Interesting, and almost...lawyerly. After reading Tenenbaum's note, I'm still not entirely clear whether he actually gave Nesson the legally requisite consent to disclose confidential legal materials. Massachusetts Rule of Professional Conduct 1.6(a) provides: "A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)." Tenenbaum's note implies that he gave Nesson some sort of blanket permission to reveal confidential information, and then "entrust[ed] him" to make the decision whether to reveal specific material. Is such a blanket confidentiality waiver (as opposed to a waiver for each bit of "confidential information") effective under Massachusetts law? I don't know.
Also, Tenenbaum's reference to "plaintiffs' penchant for secrecy" implies that there's something unusual about plaintiffs' approach to confidentiality in this case. There isn't. The vast majority of lawyers -- whatever their view of copyright -- take their confidentiality obligations very seriously, and would never dream of engaging in the kind of "radical transparency" that Nesson embraces. "[P]laintiffs' penchant for secrecy" is really just their "penchant" for observing the normal rules of confidentiality.
And as to Schmuck-gate, Tenenbaum reveals: "Like the rest of this, I was curious, so I actually asked Professor Nesson, 'Does Ray care that your wife called him a schmuck?'" The gist of Nesson's answer, reports Tenenbaum, was that Ray (Bilderbeck, one of Tenenbaum's student defenders) took it all in stride. Was that conversation recorded? Where's the .mp3? Does "radical transparency" have its limits?