Friday, May 15, 2009

Jammie Thomas' counsel seeks exit from case; accuses own client of 'false representations'

It now looks like the re-trial of accused peer-to-peer infringer Jammie Thomas won't may not begin on June 15 after all. Today attorney Brian Toder moved to withdraw as Thomas' counsel, a move that could well result in a continuance. "There’s no way another lawyer could try this case by June 15," Toder told Wired.

Toder's brief does not explicitly reveal the grounds for the motion, but suggests it's about money:
Defendant’s counsel has been working as the Court has ordered, having expended thus far $129,485 of uncompensated-for time that will never be recovered, coupled with the likelihood that a similar, additional amount will be incurred if ordered to continue representation of defendant who originally caused this firm [sic] by means of false representations.
Did Toder just accuse his own client of "false representations"? The sentence is a bit garbled ("caused this firm" what?), but it sure sounds like it. (Can a Minnesota lawyer do that? See Minnesota Rule of Professional Conduct 1.7, Comment 1 ("Loyalty...[is an] essential element[] in the lawyer's relationship to a client.").) We don't get much more detail than that, since Toder filed his own declaration in camera and under seal "[b]ecause many documents filed in this case make their way to media that [sic] result in national attention."

The motion to withdraw comes awfully late in the process, a fact that Toder acknowledges:
Your movant is mindful of the close proximity of this motion and the trial date, but there is a good reason for that.... [D]efendant’s undersigned counsel is painfully aware of the effects his motion has on the Court’s scheduling and plaintiffs’ efforts to put together their case in chief. So aware, your movant avows that he has had meaningful dialogue with other counsel who have indicated a strong desire and possibility, if not probability, that they will represent defendant if they are provided with enough time to prepare. These counsel are already intimately familiar with the issues of the case, and your movant promises to use his best efforts to facilitate defendant’s acquisition of new, competent counsel...
Toder represents that the record label plaintiffs take no position on the withdrawal motion, but do oppose a continuance. It's hard to say whether a continuance is in fact justified without knowing the complete circumstances of the withdrawal (again, the details of which have not been publicly revealed). Judges do commonly give new counsel time to get up to speed -- but not if they feel that a party or counsel is gaming the system or otherwise seeking tactical advantage. (I'm not accusing Toder or Thomas of such; we simply don't know all the facts.)

This is actually the second time Toder has sought to withdraw as Thomas' counsel; the court rejected his previous attempt in August 2007, shortly before the first trial. The first Thomas trial ended with a verdict for the plaintiffs and a $222,000 statutory damages award against Thomas for infringing 24 songs. However, the court threw out the entire verdict after determining that his jury instruction on the so-called "making available" theory of liability was foreclosed by Eighth Circuit precedent.

(h/t Recording Industry vs. The People)


  1. We must remember that while 1.16 provides a procedure for permissive withdrawal, it does not authorize it. In fact, under the Minnesota professional rules, "Withdrawal of counsel does not create any right to continuance of any scheduled trial or hearing."

    Given that this thing has drug on for two years, and given the prejudice to both sides if the only competent counsel were to withdraw so close to the trial date, I wouldn't be surprised if the court denied the petition, unless the declarations filed under seal are nothing short of ethical bombshells. After reading the Wired comment, I can't imagine him being able to come up with an argument to overcome the professional rules's advisement that "substituted counsel should be ready to jump on the moving train without asking it to slow down."

  2. It’s rather hard to understand how Mr. Toder could have spent $129,485 of “uncompensated-for [sic] time” without finding the apparently controlling case law in his own 8th Circuit that most law students could have found in a few minutes. In the end, Judge had to find it himself- and reopen the case. Leaving aside the question of RIAA responsibility to advise the Court, it’s really ironic that, if Mr. Toder done this basic research, the second trial resulting from the error in jury instruction #15 would not and should not have been necessary.

    As Judge Thomas said, sua sponte, on May 15, 2008:

    The Court is concerned that Jury Instruction No. 15 may have been contrary to binding Eighth Circuit precedent. In National Car Rental System, Inc. v. Computer Associates Int’l, Inc., the Eighth Circuit stated that “‘[i]nfringement
    of [the distribution right] requires an actual dissemination of either copies or
    phonorecords.’ 2 Nimmer on Copyright § 8.11[A], at 8�]124.1.” 991 F.2d 426, 434
    (8th Cir. 1993). This statement appears to require that actual dissemination occur
    in order to infringe the distribution right under the Copyright Act. Neither party
    presented this Eighth Circuit case to the Court.


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