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Developments of Note
FDIC Advises Banks On Avoiding Risks
Of Spyware Instrusion
The Federal Deposit Insurance Corp. (FDIC) recently issued an advisory to banks on how to avoid risks associated with spyware. The advisory recommends “best practices” to mitigate against the risks posed by spyware within an institution's network and on bank customers' computers. Among the actions recommended to mitigate internal risks are restrictions on the downloading of unapproved software, installation and maintenance of anti-virus and anti-spyware programs, and expanding bank risk-assessment procedures to consider risks from spyware. The FDIC advisory is available at www.fdic.gov/news/news/financial/2005/fil6605.html.
AZ Attorney Ethics Opinion Requires Security Measures
Attorneys must take “competent and reasonable steps” to secure client files from disclosure or destruction if they are stored on a computer network that is accessible to the Internet. Arizona Ethics Opinion 05-04 (Ariz. State Bar Comm. on Rules of Prof. Conduct July 2005). The committee said that to take such steps, an attorney must have the necessary technical competence, either personally or through the retention of an expert, “to evaluate the nature of the potential threat to client electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end.” The opinion is available at www.myazbar.org/Ethics/pdf/05-04.pdf.
NJ Ethics Committee Says Domain Name
Needn't Include Firm, Attorney Name
A law firm may use a domain name that does not include either the firm name or the name of any individual attorney within the firm, provided that certain conditions are met. Ethics Opinion 32 (New Jersey Comm. on Attorney Advertising June 6, 2004). The committee opined recently that the home page to which the domain name points must “clearly and prominently identify” the actual name of the law firm and its address, and must include certain advisories and disclaimers specified in ethics rules. The committee also stated that the domain name must neither be false or misleading. The opinion is available at http://lawlibrary.rutgers.edu/ethics/caa/caa32_1.html.
Developments of Note is written by Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger, partners in the New York office of Brown Raysman Millstein Felder & Steiner LLP (http://www.brownraysman.com/).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.
Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.