Copyright Law

Query to fellow practitioners: are we under an obligation to bring the May 15th order in Capitol v. Thomas to the attention of the Court?

By Ty Rogers and Ray Beckerman

Query to fellow practitioners:

The May 15th order entered yesterday in Capitol v. Thomas appears to indicate a knowing failure on the part of Holme Roberts & Owen to disclose to the Court contrary controlling authority, a duty which had been activated by defendant's counsel's failure to cite the case.

If this occurred, it would be a violation of the Disciplinary Rules. See, e.g. ABA Rules of Professional Conduct, Rule 3.3(a): ?A lawyer shall not knowingly . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."

I do not know for a fact that this occurred, but

(a) I assume Judge Davis is correct in saying that Holme Roberts & Owen failed to disclose the National Car Rental case to the Court, and

(b) I do know for a fact that Holme Roberts & Owen was well aware of the case.

Question: In connection with the pro haec vice motions that Holme Roberts & Owen makes on a daily basis, are we, as attorneys, not obligated to bring the Capitol v. Thomas order to the attention of the Court?

I have resolved the question in the affirmative, and have notified the judge in two (2) cases in which pro haec vice motions by Holme Roberts & Owen are pending.

I would be interested in your input.

-R.B.

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Full post as published by Recording Industry vs The People on May 16, 2008 (boomark / email).