He might have been engaged in hyperbole.
Attorney Rothman says,
“If I had sent a letter like the one they sent to me, the bar would have my license.”
You asked for it, and you got it. Here's how it goes:
The Florida Bar RULES OF PROFESSIONAL CONDUCT Provide:
RULE 4-4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 4-1.6.
The ABA has a very good paper on ethics in the settlement negotiation context here:
http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/settlementnegotiations.authcheckdam.pdfSection 4 discusses the rule that a lawyer negotiating a settlement (such as by sending a settlement demand letter) may not "knowingly make a false statement of material fact (or law) to a third person." It goes on to say that "The Model Rules define “knowledge” as “actual knowledge of the fact in question,” but such knowledge “may be inferred from circumstances.”
I read these requirements as prohibiting me from sending a settlement demand letter to someone demanding money and falsely accusing them of committing copyright infringement when either I know they did not or the circumstances are such that I should know they did not.
In my statement that if I did that the Bar would have my license, I was putting myself in Getty's shoes. In Getty's shoes, Getty's use of the Picscout Bot puts them in the best position to know whether I am committing infringement or not. In fact, Getty's knowledge is arguably better than that of the average blogger, facebook poster or company owner who has no idea how photos get on the internet or what copyright laws prohibit.
Now, an attorney representing Getty might simply accept his client's facts about the infringement without investigating them further. That could provide an element of plausible deniability since that means the attorney lacks actual knowledge that the client's facts amount to a false accusation of infringement.
My answer to that is two fold. First, if the lawyer knows from past experience that the client's facts have not supported an infringement claim, the lawyer could be guilty of failing to investigate further because he knows, from the circumstances, that the client's facts sometimes do not support a claim.
Second, Federal Court jurisdiction is exclusive for Copyright Infringement. When an attorney files suit in federal court he is subject to Rule 11 which requires the attorney, prior to filing a complaint, to make "an inquiry reasonable under the circumstances." If after making such an inquiry, the attorney files a complaint that contains legal contentions that are not warranted by existing law or which contains factual contentions that lack evidentiary support then that lawyer subjects himself and his client to sanctions and his case will be dismissed. See:
http://www.law.cornell.edu/rules/frcp/rule_11In my view, if you are going to send a letter accusing a person of copyright infringement you must be prepared to make the same claims in the letter in court. But that is probably just my view. I have not seen a decision that says that.
Topic: Schneider Rothman IP Law v. Getty Images & Zemanta Lawsuit (Read 24212 times)