Archive for February, 2006

‘Da Vinci Code’ Raises Intellectual Issues

February 27, 2006

The Internet and advancing digital technology play havoc with intellectual property law, but sometimes a copyright conflict is as low-tech as the esoteric conspiracy theories underpinning “The Da Vinci Code.�

Like, for instance, when authors of an earlier book attempt to sue the pants off Dan Brown over the breakneck-paced thriller (coming soon to a theater near you. Consider yourself warned). Brown’s conspiracy theory involved the bloodline of Jesus (and Mary Magdalene) having survived the crucifixion and spread through Europe to pretty much every royal line in every defunct or statutory monarchy. It was lifted more or less wholesale from an earlier work of purported nonfiction entitled “Holy Blood, Holy Grail,� that cross-pollinated ingeniously circumstantial theories on how Jesus could’ve easily faked his death on the cross (a theory that does not, strangely, slay ’em at cocktail parties) with Knights Templar goofiness and secret-society illuminati paranoia.

Two of the three authors of that rollicking tome are suing Brown’s publisher (which is also their own publisher) in a U.K. courtroom. Since the Brits don’t have plagiarism laws, the suit alleges copyright violation. According to The Scotsman newspaper, the case will either fall as flat as Brown’s prose or will thoroughly rewrite British copyright law.

The “Holy Bloodâ€? writers have the right idea: Brown has sold nearly 50 million copies of that silly book, and is probably scuba-diving in a drained swimming pool full of cash at this very moment. But if you haven’t written a book that Brown “used for research,â€? maybe there’s still a way to go with the cash flow. Several shots have been taken at filing class actions against James Frey for making up facts in an ostensible memoir (plaintiffs seeking reimbursement for the cover price and time lost). If someone were to contrast Brown’s assertion, at the front of his book, that the historical data in his novel is absolutely true with the midsized armada of Web sites and news articles debunking even the simplest of Brown’s “facts,” maybe we could all file Frey suits.

Ambitious class action attorneys, apply within.

— Brian McDonough


Pellicano stars in “The Spy Who Hacked Me”?

February 24, 2006

It’s got private detectives, high-profile lawyers, eavesdropping skullduggery and a dead fish. But the Anthony Pellicano case has always seemed to be missing something — sex appeal? A giant gorilla? Spies? — to be considered grade-A screenplay material.

The rumor mill is trying to help out, hinting at the involvement of secret agents. Since bigshot L.A. lawyer Terry Christensen was indicted in connection with Pellicano’s alleged wiretaps earlier this month, it’s been clear that the government has recordings of the detective on the phone with his clients. But those recordings — made by the detective himself — didn’t come easy. Obtaining them required the kind of codebreaking you expect to see in a spy movie.

In fact, many in L.A. seem to think actual spies, and not just the FBI, were required to get into Pellicano’s files. While none of them are sure enough to stand by this belief for publication, a combination of conjecture and rumor has it that an agency with plenty of well-publicized eavesdropping experience came to help (can you spell NSA?).

People familiar with the Pellicano case weren’t confident enough to be quoted — even anonymously — about their belief that agencies which typically operate overseas were brought into a very domestic investigation. And mouthpieces for both agencies wouldn’t specifically deny NSA involvement.

But security experts say that would fit into the National Security Agency’s post-Patriot Act role of assisting domestic law enforcement. And who else has the codebreaking resources needed to figure out Pellicano’s computer password?

So, no spies officially cast in this story yet. Add a pirate, though, and maybe we’re ready for the silver screen.

— Justin Scheck

Big Crime Pays Better with State Bar

February 24, 2006

Maybe Leon Jenkins should’ve robbed a bank.

Removed from the Michigan bench for judicial misconduct and subsequently disbarred in California, the Marina Del Rey man fought his way to the California Supreme Court because he felt the State Bar went easier on convicted felons than attorneys, like him, found guilty of less serious misconduct.

His persistence paid off on Wednesday, when the high court ordered the State Bar Court to let him file a petition seeking reinstatement as a practicing lawyer in California.

A graduate of Detroit’s Wayne State University Law School, Jenkins was removed from the Michigan District Court — equivalent to California’s old municipal courts — in 1991 after the Michigan Supreme Court found he accepted bribes and other favors to influence his rulings.

Ten years later, on Oct. 19, 2001, Jenkins was disbarred by California officials who felt his Michigan actions were serious enough to deny him the right to practice law here.

State Bar rules prevent attorneys who commit felonies from seeking reinstatement for five years from the date of their interim suspension, while for less serious misconduct, the five-year clock doesn’t start until actual disbarment.


Panel Weighs Opinions on Publishing Opinions

February 24, 2006

(Note: Updated Feb. 24 to add Friday developments)

A Supreme Court committee may be ready to nudge the judiciary to soften its long-held presumption that most appellate decisions should not be published.

The Advisory Committee on Rules for Publication of Court of Appeal Opinions, chaired by Supreme Court Justice Kathryn Mickle Werdegar, asked for comments Thursday on whether the rule that discourages publication should be changed to advocate it if one of nine criteria is met.

“The committee concluded that the proposed changes will help courts to focus on the relevant factors in determining whether to publish a particular opinion, while avoiding the publication of large numbers of cases that would not be helpful to the bench and bar,� the panel wrote.

Just 8 percent of opinions are currently published, according to the Judicial Council. The committee’s proposal doesn’t make advocates of total publication giddy. Veteran no-citation fighter Michael Schmier appealed to Assembly Speaker Fabian Nuñez late Friday to author a bill allowing unlimited publication. The Werdegar committee proposal “does not address the no-citation problem,â€? the Emeryville attorney said, and no one else in the Legislature will carry the bill. Friday marked the last day for lawmakers to introduce new legislation, and Nuñez appeared unlikely to sign on to the bill Friday afternoon.


L.A. Firm Pursues Hollywood-Level Technology

February 23, 2006

In the city that brings you “CSI,” “Alias” and a dozen sci-fi movies a year, maybe it’s no surprise that a law firm wants fingerprint scanners on its attorneys’ laptops. Allen Matkins Leck Gamble & Mallory, a 200-lawyer Los Angeles firm, is deploying the biometric security measure in its new IBM Thinkpad Tablet PCs.

It’s not the first time Allen Matkins has been a law firm leader when it comes to introducing cutting-edge technology, asserts Frank Gillman, the firm’s IT director.

“What’s rare is for a corporate real estate firm to be a leader in new types of technology,� Gillman explained. “What forces most law firms into technological change is that they have to. Otherwise, they tend to be risk-averse and conservative.�

Riverbed Steelhead Appliances even did a case study on the firm’s recent implementation of its wide-area data services technology, which uses a distributed network to allow faster remote access for its attorneys and clients. Even if firms increase bandwidth, there are often latency issues when running a product from another location. With WDS, the software uses block-size distribution to send data in parts. When a document is changed, it only sends the changes, much like a Web page loads faster if it has already been loaded previously.

“From an attorney’s productivity standpoint, it means the ability to provide local access, regardless of location, without having to invest in a ridiculous amount of bandwidth,� Gillman explained.


Oh, Shut Up and Pay the Ticket, Already

February 22, 2006

For years, drivers nabbed by cameras for running red lights in San Francisco have tried to get out of paying their tickets by challenging the city’s whole camera system.

But by Wednesday, the latest challenge was poised for dismissal.

The constitutional challenge came undone after a superior court judge in San Diego granted a key pretrial motion last week in Buys v. San Francisco and a few cases against other cities. According to the San Francisco city attorney, the court concluded that the plaintiffs could not collect refunds for their tickets through their civil litigation, unless a criminal court vacated each infraction first. And that, according to the city attorney’s office, removed any financial incentive to push ahead with the case. In a statement, the city said the plaintiffs had been seeking “millions of dollars” in fines, traffic school costs and attorneys fees, and that the plaintiffs’ lawyers had agreed to drop their claims against the cities on Wednesday morning.

“It completely eliminates the cloud that was hanging over the program,� said Deputy City Attorney Vince Chhabria, who was in San Diego for the case Wednesday.

Brian Burchett, a lawyer for the plaintiffs, told the San Francisco Chronicle that attorneys had dropped the litigation to avoid exposing clients to a potential claim from San Francisco for legal costs. But, he told the newspaper, “We’re still firmly convinced that what San Francisco has done and is still doing is illegal.”

It’s the second time in as many years that the city has escaped a wholesale challenge to its camera system. In 2004, a superior court commissioner turned down a challenge by hundreds of ticketed drivers to the cameras’ scientific credibility.

— Pam Smith

Boalt Hall Welcomes You. Nah, Kidding.

February 21, 2006

The first line reads like a police report: “At approximately 3:00 p.m. California time last Friday, February 17, an e-mail was generated and sent in error to a portion of our applicant pool.�

The erroneous message, sent by the admissions office at Boalt Hall School of Law, congratulated thousands of prospective students on their “recent admission to Boalt Hall and cordially invite[d them] to one more special event.� Admissions director Edward Tom sent another e-mail 16 minutes later to notify recipients of the error. Then he sent a carefully-scripted, 250-word explanation the next morning.

Unfortunately by then, as many as 7,000 Boalt applicants may have already seen the e-mail. Tom only intended the message to reach about 500 students who were accepted early to the school, according to the Associated Press.

One of those who saw the initial congratulatory message was Rachel Gardiner, a legal assistant at the San Francisco law firm Vanderhout, Brigagliano & Nightingale. Gardiner said she contacted family and friends with the good news, and she hasn’t yet been able to tell them it may all have been a mistake. Gardiner said she’s concerned about how other prospective students will handle the emotional roller coaster ride.

“To get an e-mail that validates your acceptance can be overwhelming,� Gardiner said. “And then to get an e-mail saying your acceptance was a mistake is devastating.�


Depo Man Quick to Knock on Ryan’s Door

February 16, 2006

Criminal defense lawyer Ian Loveseth scored an apparent victory in his fight to recoup costs for a client on Wednesday: Judge Charles Breyer said Loveseth could depose San Francisco U.S. Attorney Kevin Ryan and five of Ryan’s assistants.

Loveseth wasted no time; word in the federal building is that the imposing attorney (six-foot-six, rugby-scarred and long-haired — think Conan in suspenders) went right to Ryan’s office after the hearing to talk about depositions. But it’s not clear what was said, and no depo dates have been set.

Also unclear is Loveseth’s chance of getting Nabil Ismael’s attorney’s fees back — or exactly what led to Breyer’s order. The announcement in open court of the deposition order followed a closed-door meeting between Breyer, Loveseth and prosecutors.

And while depositions would seem to help Loveseth, the standard for proving that prosecutors acted so badly that the government must pay a defendant’s legal bills is tough to prove. As Patrick McLaughlin, the assistant U.S. Attorney from L.A. representing the government, pointed out in a recent court filing, the law that allows for recompense (the Hyde Amendment) says “the government must have acted maliciously or with intent to harass the target.�

— Justin Scheck

Speeder Fought the Law (the Law Mostly Won)

February 16, 2006

Some people who win the lottery buy themselves a mansion. Others prefer to travel the world — and then return home to a new imperial estate. If Alin Dragomir one day hits it big, he says he’d like to appeal a recent traffic court ruling to the California Supreme Court.

“That’s probably one of the things I would do,� said Dragomir, who has already seen his $193.50 speeding ticket upheld by the presiding judge of the Santa Clara County Superior Court.

Dragomir phoned in yesterday to talk about his two-and-a-half-year career as a pro per litigant. His friends know him better as a software engineer from Sunnyvale.

His improvised legal career began three years ago, when a highway patrol officer nailed Dragomir doing 90 miles per hour on a San Jose freeway. Using the Internet, Dragomir gave himself a crash course in legal procedure before attempting to have his ticket dismissed.

“I thought I did a pretty good job. I’m not sure there’s anything else I [could have done],� Dragomir said of his 25 minutes in court. Though he failed to beat his speeding fine, he did persuade the superior court’s appellate division to tweak Commissioner Lisa Steingart, who let a traffic cop cross-examine him at trial. (That’s against the rules.)

With Dragomir already on the phone, it would have been remiss not to ask if he knew he was going 90 in a 65-mph zone the day he got busted for speeding.

So was he speeding? “I do not dispute that fact if it comes to it,� Dragomir said. “What I dispute is the way the case was prosecuted and the many wrong decisions made by the commissioner.�

— Matthew Hirsch

Wilson Partners Quit to Take Morgan to China

February 15, 2006

Morgan Lewis & Bockius is set to open an office in Beijing with Wilson Sonsini Goodrich & Rosati partner Lucas Shen-Lun Chang and of counsel Xuting (Peter) Zhang.

Chang and Zhang resigned Wednesday from Wilson and joined Morgan the same day.

Morgan obtained its license to practice in Beijing three weeks ago, according to Philip Werner, managing partner of the firm’s practice. The new office will open in two weeks.

Heading the office in Beijing will be K. Karen Loewenstein, a Morgan Lewis partner who previously worked in the firm’s Washington, D.C., office and has also been working in China.

The firm’s strategy in China will be to build on the ties it already has with Silicon Valley companies and develop IP relationships with major Chinese companies.

Werner said Morgan Lewis is precluded under Chinese law from opening a second office in mainland China for three years, but the firm is “evaluating� Hong Kong.

Interviewed Wednesday night, Chang said he had been speaking to Morgan, Lewis for a year in a “low-key� fashion.

“Morgan, as you know, has launched its new Beijing office, which shows its determination for the China market,� Chang said. “Beijing is their 20th office. They are international and they have all the strength to do business in [Asia].�

— Marie-Anne Hogarth