The law and ethics of attorney fees prevent the practice of litigation from being just another capitalist enterprise.
— Dennis Crouch (@patentlyo) May 17, 2021
The law and ethics of attorney fees prevent the practice of litigation from being just another capitalist enterprise.
— Dennis Crouch (@patentlyo) May 17, 2021
I think the words “just another” are doing a lot of work here, but sure – the ethical, professional, and fiduciary duties imposed on the attorney by the relevant rules and laws in a given jurisdiction, coupled with the distinctive nature of the attorney-client relationship make the litigation process somewhat different from a bog-standard capitalist enterprise. At a minimum, rules imposing limits on fees and requiring elevation of the client’s interests over the attorney’s differentiate litigation (and any of a number of other legal practices) from businesses that are better characterized by arms-length transactions, self-interest, and non-regulated pricing mechanisms.
None of this means that lawyers and law firms can’t or shouldn’t be profit-seeking, or even very profitable.
Frankly, there are much more interesting questions about the intersection of ethics and money in litigation and the legal profession overall. In markets where high-end, entry-level and junior associate salaries approach and exceed $200K, is it ethical to charge $300+ for each hour of that new attorney’s time? Is it reasonable to expect a new, developing attorney to deliver two thousand or more billable hours per year, each one being worth that $300+? How do fixed-fee arrangements address or exacerbate tensions with fiduciary, competency, and other professional duties?
On the patent side, I think there are interesting questions about whether the costs of patent litigation make it effectively impossible for a patentee with a small, invention-practicing business to vindicate their rights against certain classes of infringers. If so, is that an access-to-justice problem that the profession has a duty to address?
In the context of NPEs, is it reasonable or ethical for the costs of patent litigation or post-grant mechanisms to effectively condone compulsory licensing when the amount in controversy is less than $50K? If so, at what amount does that become unreasonable?
Compulsory licensing — as some type of default ‘business’ — should be anathema to anyone who understands the US model of patent protection.
“In the context of NPEs” – the legal focus is on the property, NOT who owns the property, nor what they may legitimately do with that property.
Sir Thomas More surely spins in his grave.
There is some point to the $50K item you mention.
I think there should be a way to reduce the cost of the D in patent litigation.
I still suspect that bifurcating the trial into validity and infringement would be the best way with the D picking the order.
My experience is that it depends.
It is like medicine where there are constraints but the mighty dollar still controls all. The dollar is like the rush of a flood and the ethics are like a few boulders and cliffs that prevent things from going too far.
Still, I will tell you two cases. The most efficient practice of law was with one of the top IP firms where we served huge corporations with very sophisticated in-house attorneys. Everything was on the up and up and we did everything perfectly. We were competing against F&R for the work and we had to get the work done for a fair price and get excellent outcome and the in-house attorneys knew how to judge our work. Very enjoyable. Hard work but you could sleep at night.
The worst I’ve seen was at a top 50 firm where the clients were small companies that knew nothing. The decisions made in litigation with the small companies never would have been acceptable to the large corporations. I felt it was like bleeding a wild animal caught in a foot trap. Very unpleasant work.
I will add that with the small companies the constraint was the judges who keep things from going too far and would say things like the next motion that is filed that I dismiss is going to come with a fine.
For the large sophisticated clients, the in-house attorneys were all over everything we did.
Perhaps I’m just being obtuse, but how? There are laws and ethical rules surrounding a lot of capitalist enterprises.
Muh ethics. Hilarious. The question is who determines what is and what is not “ethical”. Nightmare mode: no leaning on “the muh body politic” etc.
Why is the practice of law not supposed to be a “capitalist enterprise”? Are law firms charitable organizations? Are plumbers not supposed to turn leaky pipes into a capitalist enterprise?
BB,
The restraint has to do with the nature of attorneys serving as fiduciaries AND our proximity to the mechanisms of law.
Certainly, the ethics side does not eliminate profit motives, but it does recognize that law is ‘the complex,’ and those seeking assistance should not be consumed by a “buyer beware” overarching theme.
I would add (outside of the immediate context), that those who TEACH law should have even more arduous ethical constraints, as they will often serve a more imposing role through Amicus Briefs as well as have a direct hand in molding the legal minds OF attorneys.
It is ok for lawyers to be capitalists.
Just don’t get caught with your hand in the cookie jar.
I would amend that thought with, “to an extent not previously agreed with the owner of the cookie jar – in writing.”
The view that NO cookies should be coming out of the cookie jar is simply not based in the reality that lawyering REMAINS a business.
Odd statement.
Rather than (my emphasis added), “The law and ethics of attorney fees prevent the practice of litigation from being just another capitalist enterprise.”
Why not just: “Legal ethics prevents the practice of law from being just another capitalist enterprise.“…?
There is far more than merely “billing,” and the reach is far more than mere “litigation.”
Or is this being generated directly from the recent exchange between Night Writer and I?
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