Attorney Client Privilege

We get this question now and then from prospective clients. We generally tell our clients that we are willing to consider such an agreement if they feel that it is necessary after they review the California State Rule of Professional Responsibility applicable to the issue which describes the duty of confidentiality owed by a California lawyer to his or her client. Specifically the rule provides as follows:

(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.

(B) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

(C) Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a member shall, if reasonable under the circumstances:

(1) make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and

(2) inform the client, at an appropriate time, of the member’s ability or decision to reveal information as provided in paragraph (B).

(D) In revealing confidential information as provided in paragraph (B), the member’s disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure.

(E) A member who does not reveal information permitted by paragraph (B) does not violate this rule.

In addition, we find the footnote to the primary obligation contained in Paragraph A to describe the level which we and most attorneys we have ever run across take the seriousness of the obligations under this section. The note provides as follows:

Paragraph (A) relates to a member’s obligations under Business and Professions Code section 6068, subdivision (e)(1), which provides it is a duty of a member: “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” A member’s duty to preserve the confidentiality of client information involves public policies of paramount importance. (In Re Jordan (1974) 12 Cal.3d 575, 580 [116 Cal.Rptr. 371].) Preserving the confidentiality of client information contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld. Paragraph (A) thus recognizes a fundamental principle in the client-lawyer relationship, that, in the absence of the client’s informed consent, a member must not reveal information relating to the representation. (See, e.g., Commercial Standard Title Co. v. Superior Court (1979) 92 Cal.App.3d 934, 945 [155 Cal.Rptr.393].)

It is an honor and a privilege to be a lawyer in the State of California. We, at InternetLitigators, have always felt that way. This obligation, above most provisions under the law, goes directly to the heart of one of the primary reasons why that is the case. If you cannot trust your lawyer, find a new one.

Copyright © 2013 InternetLitigators – All Rights Reserved.

Foresight

If you are operating a public facing Internet company you should regularly check your operative legal documents such as your terms of service and your privacy policy to include provisions that reflect the latest changes in the law. Recent cases upholding certain arbitration provisions and class action waivers are among some the the recent changes that you would take advantage of to properly protect your company. We typically recommend a reasonably priced annual review of your Terms of Service and your Privacy Policy in order to make sure that you are protecting your company to the greatest extent possible.

Far too often we receive phone calls from companies after they have been named in a lawsuit that could have been avoided by one of our annual reviews. They say hindsight is 20/20… the real question is how’s your foresight?

Employment Law – New California Labor Code Section 980 goes into effect January 1, 2013 preventing employers from requesting access to the employee or applicant’s social media identity or account access information. (more)

CYBERsitter has filed a lawsuit against Google and Net Nanny for trademark infringement in the use of the CYBERsitter trademark in AdWords. Cybersitter v. Google, Inc.; ContentWatch, Inc. d.b.a. Net Nanny. For a copy of the Complaint or if you have any questions about a competitor using your marks Contact us.

We are presently in the process of reviewing the list of applications for new generic top-level domains released by ICANN June 13, 2012. The release of the top level domain applications starts limited objection period of seven months within which any party that has an appropriate objection under the rules may file its objection with the appropriate tribunal. The application list itself gives only limited information regarding the identity of the applicant and any intended use for the registry. However, the list top-level domain string applications is interesting nonetheless, and has been highly anticipated for quite some time.

This list is not exhaustive. If you are a brand owner, there is a link to the full list below in this article. This article is intended simply to call out a few of the domains that are either popular, unusual, interesting or for some other reason. We have drawn some conclusions about the identity of certain applicants based solely upon email addresses which may or may not be a valid methodology. If you have any information about any of the applicants in this article being other than as described, please let us know.

Only one entity applied for the AAA string, that is the American Automobile Association. That makes sense, although, as a AAA member I cannot say that I would want my domain name to be my name.AAA. Time will tell as to the use AAA intends to put to this gTLD. Possibly a website for each AAA approved service center and hotel?

ABUDHABI makes our list of notable entries because it is the first to grab a geographic top-level domain. Over all, there are less geographic domains than we would have expected to see.

The Accounting field appears to have been covered rather well. Two entries one from the Accountant Limited (which applied for ACCOUNTANT) and one from Knob Town, LLC (which applied for ACCOUNTANTS). Another 6 applications were filed for .CPA which seems to make a little more sense.

United TLD Holdco Ltd. was the sole applicant for the “ACTOR” gTLD. There is no application for ACTRESS.

The Australian Football League applied for the AFL domain, the National Football League applied for NFL, Major League Baseball applied for MLB, the National Basketball Association applied for NBA, however, apparently someone forgot to tell the National Hockey League and the Professional Golf Association because they apparently dropped the ball … or puck. NHL and PGA show up as having no application pending. There was one application each for FOOTBALL and HOCKEY as well.

The gTLD APP has 13 applicants. None of these appears to make any obvious sense or have any clear reason. This is the largest number of applicants for any single domain. Applications with multiple entrants are sent to an auction type bidding process to determine the successful applicant. Apple is not among them and applied for APPLE but not APP.

There were 10 applicants for the ART domain,  one applicant for the ATTORNEY domain and  four applicants for the AUTO  domain.

BestBuy may have something up its sleeve with its application for BESTBUY although this may be the most obvious instance of an entity simply trying to protect their brand.

Nine applicants applied for the “BLOG” domain and another nine applicants apply for the “BOOK” domain. Five applicants applied for the “BUY” domain including Amazon.

Three applicants applied for CASINO.

The Political Council for Social Communication applied for the CATHOLIC domain however JEWISH and BUDDHIST  have both gone unclaimed. There were two applicants for CHURCH  and one applicant for CHRISTMAS. There was also one application for MORMON filed by IRI Domain Management, LLC.

One registration that may be at least somewhat clear as to its intention is CITYEATS filed by Lifestyle Domain Holdings, Inc.

Seven applicants applied for the CLOUD domain. Six applicants applied for the CORP domain which was up for consideration along with the original domain names .com .net and.org.

We were a bit surprised to see that there were 7 applicants for DESIGN although with all of these top level domains maybe web design is a field that will need it’s own gTLD. There was only one applicant for DOMAINS – which maybe can be used to keep track of all of this.

There were two applicants for EARTH which is quite ambitious although it may have a “green” quality to it that might have had some real value were it not for the 4 applicants for ECO, which would seem to make a little more sense if “green” is the play. There are also 4 applications for GREEN.

There are three applicants for FARMERS and another three for FAMILY and three more for FASHION.

5 companies filed for FREE although given the application fee was in the 130,000 range these applications were anything but. Is there a lot of call for people wanting domain names at mydomain.FREE?

There were 4 applications for GAY but only one was listed as a “community” registration. Godaddy applied for Godaddy but again – who would want a mydomain.GODADDY domain name?

Allstate Insurance applied for GOODHANDS although this is likely just another defensive registration.

Safeway and Wall-Mart submitted competitive applications for GROCERY. Four applications for HEALTH and one for HEALTHCARE and one for HEART – by the American Heart Association.

Eleven companies submitted applications for HOME including “Godaddy East” but none of the listings is obvious as to the intentions of any of these 11 applicants. Home Depot, Inc. took HOMEDEPOT.

There were seven applications for HOTEL but none are obviously from any major hotel chain. Hayatt applied for HAYATT and Hilton applied for HILTON.

Microsoft applied for HOTMAIL – which we can imagine several ways that might be useful. Will each Hotmail user get their own domain name at Emailaddress.HOTMAIL? Do they need or want that? Microsoft has also applied for SKYDRIVE, another one that makes some sense.

Another eleven companies applied for INC which was expected to be a hot seller, even if most of us still don’t really see why. DO they really think people will abandon .com for .inc? I am just not so sure.

Kerry Trading Co. Limited filed three applications for KERRYHOTELS, KERRY LOGISTICAL and KERRYPROPERTIES. Defensive maneuver?

If you have ever wanted a Lamborghini and it is out of your reach for the moment, you might be able to register a LAMBORGHINI domain name. Maybe each car needs a Domain? BMW took BMW, Fiat took MASERATI . Ford Motor Company took FORD and  LINCOLN, Honda took HONDA, Chrysler took JEEP, Toyota took TOYOTA. Suzuki took SUZUKI and Land Rover took LANDROVER too. General Motors applied for CADILLAC. Three applicants applied for the “CARS” domain. As an industry it seems that auto manufacturers were the largest category of applicants.These companies have large marketing budgets for brand building so this makes sense although it seems that there may have been some pier pressure applied in this industry as well. Our guess is that these are all largely defensive registrations and may not be put to significant use. For anyone interested, TESLA is wide open but the CEO, Mr. Musk was a little busy docking with the space station to worry about gTLDs. SPACEX is open too.

There were nine applications for LLC and another 4 for LLP. Another 7 applied for LTD. None of them were filed by LegalZoom or InternetLitigators.

There were 7 applications for LOVE. Really? LOVE? Dating services maybe?

Seven companies filed applications for MAIL. 3 for MOM and 2 for MONEY.

MOVIE was a blockbuster with 8 applicants including Amazon. BLOCKBUSTER was taken by Dish DBS Corporation. Another 8 applicants applied for MUSIC. I actually see that one as making some sense depending upon how it is used. There was another 4 applications for RADIO.

Fidelity applied for MUTUALFUNDS – really? MUTUALFUNDS? ICANN are you sure about this? For all the ICANN meetings I attended with Vint Cerf talking about not “breaking the internet” do we really need MUTUALFUNDS?

There were 7 applicants for NEWS but none by what appears to be any major news organization. Amazon has sought this one too.

There were 6 applicants for NOW. Yes – including Amazon again.

Five companies have applied for ONLINE. No not Amazon but Tucows. Where is eNom and GoDaddy on this one?

PAMPEREDCHEF? Enough said.

Sony applied for PLAYSTATION and believe it or not, there was only one application for PORN. The XXX domain was not included in this offering but was approved separately. There are also 2 applications for SEX.

There are 5 applications for RESTAURANT, 2 for REVIEW and 1 for REVIEWS.

There were another 5 applications for SALE but not a single one for SAIL.

Sandvik AB filed for SANDVIKCOROMANT. Wow. Inside joke maybe?

There were only 4 applications for SEARCH, yes Amzon but not Google. Based upon the email addresses of the applicants Google has applied for quite a few domains including GOOGLE and interestingly, GOO, GOOE GUGE. Google has also apparently applied for HANGOUT, HERE, HOME, HOW, INC, ING, KID and many others including LOL – yes really.

Nine companies have applied for SHOP, including Amazon and Google. 7 companies opted for STORE, yes including both Amazon and Google.

Five companies applied for TICKETS including Shubert Internet, Inc. but apparently not Stubhub or Barry.

There were 6 applicants for VIP which might be interesting and another 7 for WEB.3 for WEDDING and 3 for WINE.

This list is not meant to be exhaustive the entire list can be found here. This was simply intended to be a simple review of the domains which are popular, noteworthy or interesting in some way. If you are a brand owner and wish to file an opposition to any of the applications based upon any of the permissible grounds which include 1 String Confusion (The applied for gTLD string is confusingly similar to an existing TLD or to another applied-for gTLD string. If two confusingly similar TLDs are delegated this could cause user confusion) 2 Legal Rights (The applied-for gTLD string violates the legal rights of the objector) 3 Limited Public Interest (The applied-for gTLD string goes against generally accepted legal norms of morality and public order that are recognized under principles of international law) or 4 Community (There is substantial opposition to the gTLD application from a significant portion of the community that the gTLD string is targeting) please contact us for a free opposition consultation.

Copyright © 2012 InternetLitigators – All Rights Reserved.

Four gTLD applications target the web hosting industry. (more)

ICANN finally, after months of delay due to technical glitches, has revealed the list of applicants for new domain top level domain names (gTLDs). There are approximately 1900 applications many are duplicative of each other which will lead to a bidding process. Brand owners that feel that their legal rights are infringed by any application have a limited objection period. gTLD objections are included within the InternetLitigators member plan. Contact Us for more information.