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Another issue with outside counsel guidelines: copyright on works made for hire

Christian Liipfert wrote me about another contentious topic for outside counsel guidelines (See my post of Dec. 31, 2008: five hot buttons and a link to my article.): who owns the work product the lawyer creates?

I quote from his email: “If I hire a firm to do a memo on an issue for me, can they refer to that memo when doing a related project for someone else later? Is that permissible, either under copyright or under the professional duty of confidentiality?

I am a big proponent of knowledge management, both internally and externally. I do wonder, however, how law firms reconcile how they handle document management and brief libraries with their professional obligations. Briefs that are publicly available are one thing; confidential work product is something else.

I have no problem if the law firm, at the end of an engagement or after writing the memo, then takes some additional law firm time, not billed to the client, to distill what the lessons learned from that assignment were, and to save that centrally. Or if they rely on their memories of the work that they did for me. I would even pay for after-action reviews during the life of the matter as I think I get value out of them (and the discipline). But my sense is that in doing work for one client others may make use of (even read) an un-redacted work product prepared for another client that hasn’t been scrubbed appropriately. That’s over the line for me.”

Good point, Christian. If what you describe is an abuse, no outside guideline I have read has tackled it.