In this round, I thank John Noble for finally taking this
dialogue to the foothills of adult conversation. He
apparently thinks Kay Murray’s jump from general counsel
for the Authors Guild to in-house lawyer for the Tribune
Company during the pendency of the authors’ copyright class
action settlement is A-OK under intuitive and other
principles of ethics. I do not. I think the readers of this
thread can review the facts and decide for themselves.
Mr. Noble’s explanation is awfully legalistic, for my money. There are instances in which outrage and a sensitive nose are perfectly consonant with logic and law, and this is one.
With respect to the “big spread” between $10-million-to-$18-million and $2.5-billion-to-$600-billion ... uh, right. That’s the point. Where I would have started the negotiations is a red herring. I certainly would not have accepted a figure that is collusively low, that is not reconciled in the motion for preliminary approval with upper boundary ranges previously articulated by the plaintiff associations themselves, and that is not supported with anything other than conclusory statements.
By the way, there is no “implicit claim” that the representation of the class was ineffective. It is an explicit objection. Not only ineffective but, as attorney Charles Chalmers termed it, “collusive on its face.” (Interested readers can view the entire brief at my website.) Nor are the sentiments of members of the Guild sufficient. I am not a member of the Guild but I am a member of the class, and my argument is, among other things, that there is no legal basis for the associational plaintiffs to be representing the class, especially not for damages. Murray’s casual stroll through the revolving door merely underscores this.
Finally, I want to thank Jessica Friedman from the bottom of my heart for attacking my character without any foundation before ducking out, then giving the rest of us permission to carry on. Very big of her, I think, to let this forum and community discuss the issues on our own terms.
Irv Muchnick
> At 3:20 PM -0400 8/11/05, Mike Bradley wrote:
> >I guess Ms. Murray is a wonderful person and fine
> attorney. But
> >isn't her move exactly the sort of move that lies at the
> heart of
> >the corruption so many of us complain about in politics?
> A person
> >works for a government regulator then works for the
> regulated
> >industy then manages a government dept then works as a
> lobbyist
> >lobbying the same dept, and so on.
> >
> >The swinging door is a practice condemned by every
> non-partisan
> >good-government watchdog. It inevitably presents serious
> conflicts
> >of interest and has been shown to undermine honest
> dealings in
> >government and industry alike.
> >
>
> That would be the revolving door, and it is/was a problem
> to the
> extent there are/were no rules for non-lawyers like the
> Rules of
> Professional Responsibility that govern the conduct of
> lawyers in or
> out of the government. The problem of the revolving door
> for
> non-lawyers between regulator and regulated has been
> addressed, at
> least at the federal level, by the enactment of laws that
> are closely
> analogous to the Rules of Professional Responsibility,
> except the
> rules for lawyers are more specific.
>
> It is important to understand that a conflict of interest
> does not
> arise from the mere fact of representing an old opponent
> as a new
> client who may have interests that are opposed to those
> of a former
> client. The conflict arises from the inability to
> zealously represent
> the new client without violating continuing obligations
> to the old
> client, such as confidentiality. The rules essentially
> prohibit
> representation of the new client in matters related to
> your
> representation of the old client, unless we get waivers
> all around,
> because you cannot represent the new client zealously
> while you are
> keeping secrets from him.
>
> At 12:25 PM -0400 8/11/05, Irvin Muchnick wrote:
> >"What about all the info Guild members have confided in
> Kay
> >Murray regarding the settlement? Is she bound by
> >attorney-client privilege?
>
> The answer is unequivocally and emphatically "OF COURSE!"
> Mr.
> Muchnick might have asked the question before he wrote
> the rant, but
> then he wouldn't have had a rant to write.
>
> >The issue is not whether Murray is a lovely person, but
> whether her
> >legacy as a lawyer "so sensitive to authors' issues"
> might be a tad
> >... tainted ... by this chain of events, if not by her
> participation
> >in arguably the worst sellout in the history of writers'
> rights, and
> >an egregious abuse of the class-action system to boot.
>
> Mr. Muchnick doesn't understand the "legacy" that lawyers
> are about.
> We take on cases, not crusades. We represent clients, not
> causes. Mr.
> Muchnick may have good cause for his crusade. Maybe Ms.
> Murray rolled
> over at $10-18 mil. when the publishers were prepared to
> pay
> something closer to Muchnick's $2.5-600 bil. before
> saying "screw
> this -- let's litigate." (That's a big spread, Irv. Where
> would you
> like to start the negotiations? At $600 bil., or should
> we save some
> time?) If Muchnick has cause for his crusade, he's a
> client with a
> case who needs a lawyer; but the only conflict of
> interest less
> specious than Muchnick's invention, is Murray's continued
>
> representation of the Guild -- defending both her client
> and herself
> against Michnick's implicit claim that her representation
> was
> ineffective. Or as he would have it now, traitorous,
> because it's
> hard to argue that the Tribune Company hired her for her
> demonstrated
> incompetence and docility. Let's not lose sight of the
> irony here.
> One would expect Muchnick to applaud the defection and
> welcome the
> replacement of an incompetent or traitorous attorney if
> he shared the
> interests of other members of the Guild.
>
> >"Attorneys have an obligation under the canons of ethics
> to avoid
> >even an appearance of impropriety," one outraged
> attorney-reader
> >wrote to me. "This really stinks."
>
> Outrage and a sensitive nose are poor substitutes for
> logic and law.
> The Rules of Professional Responsibility prohibit the
> disclosure or
> use of a client's confidential information without the
> client's
> permission. They make it clear that you cannot take
> employment that
> would require you to violate that rule. It's a
> bright-line rule.
> There's no appearance about it. The rules regarding the
> appearance of
> impropriety plug a hole by prohibiting private employment
> in matters
> in which you acted in a judicial capacity or as a
> government official
> even if you don't have any confidential information to
> disclose.
> There is no appearance of impropriety -- absolutely none
> -- in
> Murray's representation of the Tribune Company in matters
> that don't
> suggest the useful disclosure of confidential information
> obtained
> from her client in this case. You don't get to own a
> lawyer forever
> by hiring her once. A lawyer in the District Attorney's
> office can
> decide he'd rather work for the Public Defender. You
> can't take the
> appeal if you prosecuted the conviction, but if you can
> put a guy in
> prison for killing his wife, and then take the case when
> he's charged
> with murdering his cellmate, you're a lawyer.
>
> John Noble
http://www.muchnick.net HOME OF:
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Confessions of an Internet Avenger
http://crassaction.muchnick.net
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Objections to $10-to-$18-Million Copyright Class Action Settlement
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Received on Sat Aug 13 2005 - 03:00:01 GMT
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