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On The Merits

It’s In the Cards

Most lawyers are risk-averse by nature.  Gambling with their clients’ fortunes is not something you see very often.  

By contrast, Nevada professional gambler Phil Ivey is largely regarded as the greatest living poker player in the world. His string of success at the tables since winning three championship bracelets at the 2002 World Series of Poker has catapulted Ivey into iconic status among poker’s elite and the public. 

Now, Ivey is considering his legal options after losing a lawsuit in London where he challenged a casino’s decision to withhold more than $12 million that Ivey “won” by allegedly relying on an unfair advantage in a version of baccarat, a popular casino card game.

Using his observational skills and a card dealer’s willingness to arrange the cards in a certain direction, Ivey employed a tactic called “edge sorting,” which allowed him to determine the face value of cards based on design imperfections on the cards’ backs. The casino claimed this setup presented Ivey with an unfair advantage that voided the multimillion-dollar haul he thought he’d won in 2012.

A judge with the High Court of Justice in London acknowledged that Ivey was a truthful witness who believed what he was doing was not cheating, but the court nonetheless found that Ivey’s advantage was precluded by the casino’s rules.

The argument over whether it is ethical or “cheating” to gain an advantage based on printing flaws on playing cards may be tested again as early as next year when Ivey faces civil claims filed by the Borgata casino in Atlantic City, New Jersey. In that case, the casino says Ivey and a friend conspired to win more than $9 million in 2012 using the same “edge sorting” technique.

Of course, when you already know what the cards are because you’ve mastered the art of edge sorting, it’s not quite the risk that other gamblers take, is it?  Maybe he and his lawyers have more in common than we think.  

Posted: 11/10/2014 8:28:19 AM by On the Merits Editor | with 0 comments

ABA Rockets into the Future

The nation’s largest association of lawyers recently announced a unique partnership with an online legal services provider in a move that further illustrates the rapidly changing practice of law.

During its recent national meeting in Boston, the American Bar Association (ABA) announced that it is partnering with Rocket Lawyer Inc. to help ABA members establish more and better online connections with potential clients who otherwise would not be able to identify or afford legal counsel. ABA officials have said Rocket Lawyer will not profit from the program, and that the company will benefit from its association with the ABA. Founded in 2008, Rocket Lawyer provides free legal documents and no-cost legal information in addition to connecting online visitors with licensed attorneys at affordable rates.

In the infancy of the Internet, most law firms shied away from communicating with clients online for fear of leaks and/or the possibility of legal communications being intercepted by a third party. At the same time, many firms, including some looking to protect their own financial interests, warned clients that it was a bad idea to do business with companies such as Rocket Lawyer where legal advice would come from an attorney they likely had never met.

As is often the case, the public is a bit ahead of the profession. It has grown far more accepting and trusting of electronic communications – a dynamic that largely can be attributed to the widespread adoption of smartphones as a preferred vehicle for communicating with nearly everyone, including business associates, friends and family. As a result, services such as Rocket Lawyer have quickly grown in popularity and earned the approval of customers and, apparently, many in the legal community.

Although this certainly may not be your father’s (or your mother’s) way of practicing law, the fact remains that one of the more pressing issues facing the legal profession is the vast majority of consumers for whom legal services are prohibitively expensive. If Rocket Lawyer is successful in meeting its stated goal of “making legal services affordable, simple and available to more people than ever before,” that may well be a good thing.

Posted: 10/8/2014 11:05:11 AM by On the Merits Editor | with 0 comments

No Good Weed Goes Unpunished

The explosion of the legal marijuana industry in the U.S. is creating many related jobs while producing millions of dollars from investors and members of the pot-buying public. As a result, more and more legal weed companies are looking for legal representation with varying degrees of success.

While some law firms are embracing the opportunity to work in the new marijuana economy, many are distancing themselves, particularly those with ties to federal agencies that adhere to federal anti-marijuana laws.

Legal pot is projected to generate billions of dollars in annual revenue in the near future, creating countless opportunities for lawyers and others. In all, 23 states and the District of Columbia permit the sale and purchase of marijuana either for medical or personal use.

The issue for law firms is whether to embrace the available work or look for business elsewhere based on the existing federal laws prohibiting the production and sale of marijuana and/or how a firm’s members and clients feel about the issue. A handful of regional law firms and a few national firms already have made their decision and currently are working to expand their roles in the industry. At the same time, many firms are holding internal discussions to determine what related role, if any, they may take.

Either way, there’s virtually no chance that potential clients who need representation and have the wherewithal to pay for it will fail to secure it. After all, the issue of whether to represent unpopular or repugnant clients is not a new one. And the profession has a long history of ensuring that even the most unpopular clients get legal representation when they need it.

Besides, the potential opportunities for lawyers here are growing like, well, weeds.

Posted: 10/2/2014 1:28:00 PM by On the Merits Editor | with 0 comments

I Reddit on the Internets!

The proliferation of the Internet has resulted in numerous ways to seek legal advice that were unthinkable only a couple of decades ago. From one-on-one video chats with attorneys on law firm websites to free online legal forms, the practice of law is changing rapidly. Unfortunately, the rapid pace of technology sometimes obscures the fact that often legal advice from an attorney is just a bit more reliable than those helpful folks on the internet who might think they understand the law.

One recent example can be found in an exchange on the popular open-source website Reddit, where a user found himself in a troubling legal predicament after seeking divorce advice in a Reddit forum. According to the unidentified man who posted the tale of woe, he previously had asked for advice online concerning his plans to divorce his wife.

He reportedly received an anonymous reply that counseled on how to create a conflict of interest for any and all local attorneys that his wife might want to hire:

“You don’t have to hire the best or most expensive attorney. You need to consult with the top family attorneys in town. The lawyer cannot represent your ex to be if you’ve discussed your marriage with them. It’s a conflict of interest. Read up on it, there are a few tricks you can pull to help even the playing field.”

The Reddit user apparently responded to this advice by contacting as many as 30 divorce lawyers in the unnamed Utah town where he says he lives. The tactic briefly worked, according to the advice seeker, before his wife finally found an attorney to represent her and uncovered the scheme.

Despite being burned the first time, the man decided to seek help on Reddit’s “legaladvice” forum, which advises users: “Any advice found here IS NOT legal advice. Reddit is not a substitute for a real lawyer.” In his post titled “I’m in some deep (expletive) in a divorce,” the man noted that his wife had filed a motion asking the court to force him pay her legal fees based on his conduct.

The tug of war between practicing lawyers and non-lawyers who provide advice on the internet isn’t going away any time soon. But neither is the fact that sometimes the best way to stay out of trouble with legal system is to talk to someone who knows: a lawyer.

Posted: 9/23/2014 1:25:06 PM by On the Merits Editor | with 0 comments

Monkey See, Monkey Do, Monkey Does Not Profit

Making light of the legal system by pointing out silly lawsuits has become something of a cottage industry in recent years, although deciding whether a potential legal claim actually has merit takes some deeper digging into the facts because, well, things are not always as they seem. After all, writing a sensational headline is easy; completing a proper legal analysis requires quite a bit more effort.

Case in point: What if you heard that a legal dispute led to a recent ruling by the U.S. Copyright Office that animals – monkeys in particular – cannot own copyrights? Sounds less like the real world and more like Tina Fey’s “lawyer who’s a monkey” bit. But if you dig a little, you’ll find a real-world dispute about exactly who owns the photographs taken by a monkey. Seriously.

Here are the facts: British nature photographer David Slater was working in the Indonesian forest in 2011 when a macaque monkey grabbed his camera and began snapping photos. The monkey apparently liked the sound the camera made when the buttons were pushed, resulting in hundreds of photos, including a picture of the photographer and this amazing monkey selfie.

When the U.S.-based Wikipedia posted the photo, Slater objected, contending that it was a copyrighted photo. Wikipedia officials responded to Slater by contending that they did nothing wrong because, as their Chief Communications Officer put it, “monkeys don’t own copyrights.” As true as that statement might be, Slater’s argument was a good one. He makes his living as a photographer, and he takes thousands of photos in the hope that he can sell them for profit. Wikipedia’s actions, Slater argued, cost him a large amount of money that he could have earned on the monkey selfie alone.

U.S. copyright law, however, generally says that whoever presses the button owns the copyright. And in this case, the button was pressed by, well, you know. So, the Copyright Office decided, apparently, to provide its own clarification. Under the laws in Slater’s native England, the photo would have been covered under the Copyright Designs and Patents Act of 1988 based on the notion of “intellectual creation,” although media reports indicate no such trial has taken place in UK courts.

So is this dispute silly or important? We all benefit from the work of professional photographers, through Wikipedia or otherwise, and both Wikipedia and the photographers have a lot at stake here. And anytime money and livelihoods are at stake, the proper resolution of a legal dispute is anything but silly.

Posted: 9/11/2014 9:11:14 AM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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