Re: A Client's Welfare (Was: Web Sweep)

Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> Mr. Firemark -- If you feel your client probably doesn't have a case,
> aren't you acting in his best interest by explaining this to him,
> (A) so that he'll have a better understanding of what his rights
> actually are, and (B) so that he doesn't waste money and energy
> pursuing a case that probably won't work out? Aren't you being PAID
> to give him the facts, so that he'll be in a better position to
> decide what he wants to do?

First of all, please remember that I am playing devil's advocate here... I'm not even a litigator.

> Your letter conveys an impression that you feel obliged to "zealously
> represent your client," but you don't feel obliged to give him the
> facts. How can this be? Isn't it the client's right to decide whether
> he wants to start a case with a 1% chance of success? Should you be
> making these decisions for him?

Where do you get this impression? Althought the law REQUIRES that I represent my client zealously, I would never make a decision FOR the client. You are right that advising the client of the LAW (in light of the facts) is my responsibility. What if , after a full briefing of the law, facts and likely outcome, the client wants to proceed anyway? (I'm talking about a colorable claim here, albeit with a possible defense, a bit different from an altogether frivolous claim)

I don't see writing a Cease and Desist letter in a questionable case as problematic. I'd think much harder before filing a lawsuit. The fact is, the letter puts the infringer on notice and ususally ends the trouble. The fact is, upon receipt of a lawyer letter, the prudent course of action is to consult an attorney and get some advice. If the recipient of such a letter chooses NOT to consult an attorney and stops the offending activity, haven't I done my client a service?

> A lawyer who asserts he has an obligation to litigate for any client
> with the money to pay the bill is in the same class as a doctor who
> asserts he has an obligation to operate on any patient with the money
> to pay the bill. The public (people like me) doesn't understand this
> position.

This is just plain insulting. Lawyers work for clients who feel they've been wronged. Yes, we expect to be paid for our work, but the lawyers who pursue truly meritless claims are few (at least in the intellectual property fields).

You are probably someone who would suggest that a doctor has an obligation to operate on someone who CAN'T pay the bill, but that he shouldn't perform useful surgery for a paying patient unless it's a matter of life and death. Do you work for an HMO by chance?

   GORDON P. FIREMARK
   The Business Affairs Group - Entertainment Law    800 S. Robertson Blvd., Suite 5
   Los Angeles, CA 90035
   (310) 360-0365

        firemark[_at_]firemark.com
        http://www.firemark.com/
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