Why would corporate house counsel be limited by unsupervised discovery? Source: The Betrayed Profession (1994), p. 11 Middle. Indeed, even today we have significant areas of law where lawyers must pledge not to do what their clients would wish them to do. Judges will often agree to order the opponents of a party to a lawsuit to let that party's lawyers interrogate them and scour their files in unsupervised "discovery" proceedings prior to trial. Such access to the other party's secrets may, how- ever, be hedged with a "confidentiality agreement" by which the lawyer promises not to communicate the contents of those files to anyone, including his clients. House counsel for corporations will be limited in what they can do when litigation requires this sort of discovery [emboldening mine], because courts will be reluctant to give mere employees of the company, whether or not they have law degrees, access to confidential files of its rival. Why does the bolded sentence refer only to house counsel? Doesn't this limitation include external counsel too? What does 'they can do' mean exactly? No benefits from this unsupervised "discovery" to house counsel? House counsel's inability to thwart the counterparty's counsel from benefitting from this "discovery"?
In-house counsel is presumed to be intimately familiar, in a way that retained counsel is not, with both the day-to-day operations of the business and its longer-term strategic planning. So imagine that you're in an R&amp;D intensive industry, and you've been sued by a competitor. The competition's in-house counsel has served you a request to produce documents relating to the research that you're working on, your plans to monetize it, your assessments of the market, etc. Do you want someone to reviewing those documents on their way in to C-suite conference? Courts recognize that providing those documents to in-house counsel creates an almost unavoidable risk that that information will be (mis)used for purposes beyond the litigation. If you've only got your in-house counsel on the case, you can expect a court to be much more reluctant to enforce those kinds of discovery requests than it would be if you had outside counsel who isn't involved in the business. Vorys wrote a good article about this in 2004: http://ccbjournal.com/articles/4159/exclusion-house-counsel-discovery-sensitive-data
This overstates the case. A company must pursue infringements, arguably even when it isn't economically sensible in isolation to do so, to prevent its trademark from being diluted. But, that isn't the case &quot;when it's blatantly obvious that there is no infringement.&quot; There is no benefit from pursuing cases that aren't even colorable infringements. The notion is similar to adverse possession. If you let someone openly use your real property without your permission, eventually, the squatter becomes its legal owner. Also, as in the case of adverse possession, an alternative to suing someone for infringing is to make their permission non-infringing by writing them a letter expressly authorizing them to use your mark. Permissive, licensed use does not dilute a trademark.
If a defendant has committed a crime, they would choose to self-represent to ensure that no one else would know about the circumstances of their crime. Although lawyers are ethically bound to not disclose information that would not be in the interest of their client, the decision to breach this duty would be up to the sole discretion of the individual in question. In cases where the exchanged information may used to provide evidence against the client, the lawyer is compelled to disclose the truth to the courts/law enforcement. This is deeply misguided. Criminal defense lawyers usually represent people who are guilty and there is no ethical problem with doing so, nor does this mean that the lawyer will disclose privileged information that is prejudicial to the defendant in the course of the representation. The notion that a lawyer would be compelled to testify against his client to the courts/law enforcement is simply not how the system works. It is true that a lawyer cannot ethically put you on the stand to offer testimony when the lawyer knows that your testimony to the court will be an outright flat lie, and that this lie is your strategy to prevail in your defense, but that is the sole meaningful limitation on what a lawyer can do for you. However, I can't think of a single instance, in which a desire to defend yourself at trial with a lie has caused someone to represent themselves. Usually, someone with that kind of motive will simply lie to their lawyer as well. It never makes sense to represent yourself if you are innocent and want to be acquitted of the charges against you. But, keep in mind that this is a small subset of all criminal defendants. Criminal defendants are overwhelmingly guilty of something. Usually, a criminal defense lawyer works to either exploit prosecution mistakes or lack of knowledge that prevent the prosecution from proving that guilt, or work to make sure that the defendant is not convicted of a more serious crime than the one committed, and/or work to see to it that their client does not receive an unnecessarily harsh sentence when alternatives are available. In real life, people represent usually themselves, either because they are denied access to counsel (which can be done in a criminal cases where the prosecutor waives the right to seek incarceration as a sentence), or because they are "crazy". Many people who represent themselves in a criminal cases do so because they want to proudly claim that they committed the crime as a means of obtaining of forum for public recognition of what they believe was righteous action even if this could lead to their death. Many terrorists, domestic and foreign, fall into this category. For example, the fellow committed a massacre at a Colorado abortion clinic tried to do this (if I recall correctly, he was later found incompetent to face a trial and has been committed to a mental institution until he becomes competent, if ever). Other people represent themselves out of a strongly felt guilt that they feel a moral duty to confess to, even if this means that they will face severe punishment for doing so. One subset of this group of people are people known as "death penalty volunteers" who try to get sentenced to death and try to waive all appeals and post-trial review. Sometimes they also plead guilty in the belief (often, but not always, inaccurate) that their swift guilty plea when they aren't actually guilty will protect someone else whom they know to be actually guilty. Other people represent themselves because they have deeply held, but paranoid and inaccurate views about the legal system such as members of the "Sovereign Citizens Movement" who think that if they say the "magic words" that they cannot be convicted and that lawyers are a part of a conspiracy designed to prevent them from doing so. Another situation that comes up is when an affluent person who is not entitled to a public defender as a result, chooses to represent themselves, usually with respect to a fairly minor charge like a traffic violation that carries a risk for a short term of incarceration, to save money. But, this is rarely a wise choice. But, unless you plan on pleading guilty or being found guilty at trial, self-representation does not make sense, and even if you plan on pleading guilty, a lawyer is usually worth it. For example, even if the direct consequence of a guilty plea is minor, the collateral consequences of that conviction (e.g. loss of eligibility to work in certain jobs and/or deportation and/or loss of a right to own a firearm) may be consequential and something that a non-lawyer would not realize was happening. Or, maybe you think you are guilty of crime X so there is no point in fighting the charges, but actually, the language of that statute has been defined in a manner that means you are really only guilty of less serious crime Y.
Firstly, legal professional privilege applies only when information is disclosed for the purpose of obtaining legal advice. Talking about a bad haircut you got last week is probably not protected by legal professional privilege. Secondly, all privileged communications and documents are confidential and protected. However, there are certain exceptions to legal professional privilege - such information is not privileged, not confidential and may be disclosed. Finally, there is an exception to legal professional privilege. This is where documents form part of a criminal or fraudulent act, or communications that take place with the intention of carrying out an offence - from the Law Society Chapter on legal professional privilege, 6.4.5. It goes on to enumerate a number of exceptions to legal professional privilege: Intention of furthering a criminal purpose If a client (or a third party) intends that the communication is made to further a criminal purpose, it is not privileged. Knowing a transaction constitutes an offence If the transaction is an offence, the lawyer also commits an offence - these communications are also not privileged. In answer to your question - information about past crimes is privileged, however, information provided in order to obtain advice on committing future crimes is not.
Yes. There is both a duty to disclose and permit inspection of certain records (e.g. those that adversely affect either party's case or support another party's case) and a right for the court to demand access to other specific records. In england-and-wales the applicable rules are found in Part 31 of the Civil Procedure Rules. For example: Standard disclosure 31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. Specific disclosure (1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. Party's control 31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control. (2) For this purpose a party has or has had a document in his control if – (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it. Right of inspection 31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it, or (c) paragraph (2) applies. (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. Inspection and copying 31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. And, in case there's any doubt that this applies to electronic records: Meaning of document 31.4 In this Part – ‘document’ means anything in which information of any description is recorded;
No contract can limit a court's jurisdiction An NDA is a contract: it cannot prevent the application of the judicial process. Should your dispute reach a courtroom, the NDA and the documents it seeks to protect are all admissible and you should subpoena them from the defendant and submit those copies to the court (that way you are not breaking the terms of the NDA). What is not admissible is bona fide "without prejudice" documents: that is documents that contain admissions and offers made in a genuine attempt to settle a dispute. This privilege is established by the context of the document, not by if it does or does not have the words "without prejudice" on it (except, of course, that their presence/absence is part of the context).
Not only would it not be unethical to argue both sides of the issue, if the lawyer argued both sides of the issue and won on both sides, this would be proof that the lawyer is an excellent lawyer. Because the victory would be based on the lawyers skills and not on whether the law leans one way or the other. Speaking of ethics, I believe it would be unethical for a lawyer not to argue on behalf of one of his clients. A lawyer is required to represent each one of his clients zealously. If this means the lawyer has to argue both sides of an issue, as long as there is no conflict of interest between his two clients, then the lawyer must do so. Our system is an adversarial system. The system is designed to get a just result by having each side argue their own position in an adversarial setting. This means that the opposing lawyer could argue that the first lawyer is arguing both sides of the issue in different cases. However I believe a good judge would find that lawyer's argument to be irrelevant. Because the only arguments that are relevant would be the arguments based on the law and the facts of each individual case. In other words it would not be relevant for the opposing lawyer to argue that this lawyer frequently argues both sides of the case. As long as he is not doing so in this one specific case.
when is it a good idea to get a lawyer? Only when you are not confident that you can put enough dedication to the matter &amp; learning curve, or when you are not confident of your ability to cope with the emotional/frustrating toll of judicial proceedings. I do not mean this in an ironic way or to challenge you. It is just important to avoid a false sense of confidence. However, if you decide to represent yourself in court, you will have much more control of your case than if you delegate it to some lawyer whose attention is split with many other unrelated cases. Also, never get intimidated by pedantic or wasted phrases such as "he who is his own lawyer has a fool for a client". In the XXI century, most urban people can read and write, Canadian laws are written in your own language, and the Internet provides many informative resources for free. Furthermore, even knowledgeable attorneys happen to be clearly wrong about the law, as I pointed out here. I feel like the bulk of the work is carefully detailing what happened which feels more like the job of a news paper editor. It involves more than that. A newspaper editor does not get entangled with subtleties of a story or of the law, and subtleties are often decisive in judicial proceedings. Litigation also involves intensive legal research so as to find case law (that is, binding court decisions) and statutes that support your position. The application of these laws to a particular case are often premised on subtleties. Hence my remark in the previous paragraph. A newspaper editor hardly ever knows what questions or evidence are required or would suffice for proving a case. This knowledge only comes through (self-)education and experience. What options exist if I don't want to pay a lawyer a bunch of money and am willing to do most of the work myself, for example would pro bono be a good option? Start by searching for "pro se" and "Canada" on the Internet. Some of the results might actually provide guidance on what procedural law(s) apply in your jurisdiction, the legislation, and so forth. As for searching case law, there should be a Canadian equivalent of http://www.leagle.com/leaglesearch (sorry I am not knowledgeable of the specifics of Canadian litigation/resources). Based on your other post, I presume you are or will be getting acquainted with the Tenancy Act. I recently addressed here a question about the Act, showcasing the combination of that legislation and contract law (interestingly, many tenants presume their issue with the landlord is strictly about landlord-tenant legislation when in fact it has to do with contract law). I am sure in a library will find plenty of useful books covering the basics of the legal system as well as the rules of civil procedure. Find out whether the public has access to case files in Canadian courts. If so, go to a courthouse and study those files. Get acquainted with the drafting and format of pleadings, motions, responses, briefs, and so forth (although in Small Claims court much of this would be unnecessary, for small claims proceedings are much more simple). This will show you the practice aspect of what you learn from books. When using a term that you consider essential to your case, be sure to consult its meaning in a legal dictionary (I do not know whether Black's Law Dictionary is applicable in Canadian litigation). The meaning of many words are much more specific in litigation compared to their common usage. Or would getting a real lawyer and spending only one hour of his time be better? I highly doubt it, especially if you have not gained any background in law. A lawyer will not explain things from scratch, let alone the intricacies you need to know. The most you could get from speaking with a lawyer for an hour would be notions which are too generic to be of any use at all. Moreover, I doubt that a lawyer in a phone interview will give you any legal references for you to verify on your own. In the very beginning of my litigation, I spoke with a law firm as assigned by a lawyer referral company. By then I already had some background in law and therefore I had specific questions. The guy from that law firm just kept babbling ambiguities very quickly. At the end of the phone call, I thought "nah, I will do this by myself". You might end up making that decision in your current or future matters.