Confidential Client Communications? Maybe Not
June 28, 2006
Former SEC Chairman William H. Donaldson noted in a March 5, 2004 speech that SOX was needed to deal with 'a general erosion of standards of integrity and ethics in the corporate and financial world ... The acquiescence by the gatekeepers, like accountants, who turned their backs or actually condoned such accounting manipulation, combined with stock option incentives to management, fueled the short-term focus.' Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers.
'Misprision of a Felony'
June 28, 2006
Notwithstanding the continuing reliance of federal courts on the Federal Sentencing Guidelines, they recognize that Congress did not intend to weaken the plea bargaining system when it enacted the Sentencing Reform Act. Given the formulaic nature of the guidelines, plea bargaining may be the best way to secure the most advantageous result for a client facing federal criminal charges. One bargaining tool is for defense counsel to suggest that his client plead to an alternative charge, such as misprision of a felony, 18 U.S.C. ' 4.
Compliance and Ethics Programs: Passivity Is Passe
June 28, 2006
What changes did the Sentencing Commission make last year? Several general themes emerge. First, the Sentencing Commission attempted to create responsibility and more direct accountability on the part of corporate management for the existence and operation of a compliance and ethics program. Second, the Sentencing Commission created some specific responsibilities, in respect of the compliance and ethics program, for the 'governing authority' of the entity, which for a corporation is the board of directors. Third, the Sentencing Commission clarified that training is a mandatory means by which to 'communicate ... its standards and procedures' to all employees, including directors and management, and, as appropriate, third-party agents. This article examines those themes in greater detail.
Internet Assets of A Decedent
June 28, 2006
The Internet has brought many innovations, fads and new considerations with it to public life in general, and to the realms of commerce in particular, including to the practice of law. Among these, it has allowed new assets to spring into existence for consideration by competent tax and estate planners.<br>All Internet assets are intangible personal property ' they cannot be seen, felt or perceived in the usual way by the ordinary senses. For tax- and estate-planning purposes, each Internet asset is subject to one of three different legal classes. Below, we look at these assets, the classes they fall into and some considerations that bear on them.
Some Old Lessons For New Enterprises
June 28, 2006
e-Commerce firms have aggressively marketed themselves as the new kids on the block. They eagerly discard old ways of doing business, confident that their way of doing business ' online ' is better. It's an e-commerce article of faith that everyone can work more efficiently if he or she would only eliminate outdated practices that don't take advantage of the conveniences available online.<br>But maybe some supposedly 'old' laws and ways of doing business have survived ' for decades and centuries ' for reasons other than that the Internet had not yet been invented. Sometimes, the tried and true is sufficient for what's needed. The old way may work more reliably, and perhaps even better than, the new path offered by e-commerce.
Going High-Tech On the Paper Trail
June 28, 2006
It makes sense that attorneys who advise e-commerce ventures as part of their regular practice would try putting technology to use to manage law firms. And it makes sense that they'd be the ones to succeed.<br>As technology continues to permeate our society, use of radio frequency identification (RFID) equipment is spreading far beyond tracking 18-wheelers cross-country, or products and parts moving in and out of warehouses ' or, for that matter, stray cattle, pets or misplaced car keys.
eBay Inc., et al. v. MercExchange LLC
June 28, 2006
The Supreme Court's May 15 decision in eBay Inc., et al. v. MercExchange LLC (eBay) is already a landmark in patent law. The unanimous Court rejected the general rule, previously applied by the Court of Appeals for the Federal Circuit, that a permanent injunction will issue against patent infringement absent exceptional circumstances. Instead, the Supreme Court held that, consistent with the 'long tradition of equity practice,' a patent holder must satisfy a four-prong test.
The Oz Illusion: The Expert Behind the Curtain
June 28, 2006
Notwithstanding all the criticism of baseless opinions expressed in courts by experts, more often than we would wish to contemplate, case outcomes are dictated by expert witnesses ' and some of those witnesses have no empirical bases for the opinions that they express (Eaton, L., 2004. For Arbiters in Custody Battles, Wide Power and Little Scrutiny. <i>The New York Times</i>, 5/23, p. 1).
