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aka_mythos wrote:I believe Paralegals, who often have a similar but different certification, are allowed to draft C&D's in addition to a lawyer or a self representing party.

While a paralegal can author and sign a legal correspondence, it should be clearly stated that the correspondence does not include any independent legal judgment or advice. So unless a paralegal wants to be brought before the BAR and possibly sent to prison, they should never, ever present their correspondence as valid legal advice (which advising some company to stop some action would be).

When I was employed as a paralegal a coworker faced a bar complaint for a similar situation.

Thats why I said "draft"... a lawyer still has to sign off on it... even if they don't read it.

In the case of the C&D CH recieved from GW's UK legal team I believe that was one of many reasons why CH's lawyers told them it was invalid; it was only signed by the UK equivalent of a paralegal... despite the fact that in the UK they have a bit more authority than here.

I guess I misunderstood your point since it's the specialized knowledge of a US based lawyer that will create an actionable legal document and it appeared that you were stating that paralegals are just as good as lawyers in regards to sending such documents.

Edit:
It could have been signed by a barrister in the UK and it wouldn't have mattered as UK law has no force in the US.

aka_mythos wrote:Thats why I said "draft"... a lawyer still has to sign off on it... even if they don't read it.

In the case of the C&D CH recieved from GW's UK legal team I believe that was one of many reasons why CH's lawyers told them it was invalid; it was only signed by the UK equivalent of a paralegal... despite the fact that in the UK they have a bit more authority than here.

I've been following this thread and I don't believe it's ever been mentioned that it was a C&D from GW UK. How do you know this? Or did I misunderstand and it's pure conjecture?

aka_mythos wrote:In the case of the C&D CH recieved from GW's UK legal team I believe that was one of many reasons why CH's lawyers told them it was invalid; it was only signed by the UK equivalent of a paralegal... despite the fact that in the UK they have a bit more authority than here.

Must have been a big shock for the Nottingham HQ that the colonies (including France) now have their independent law
Guess that's why their revised set of demands doesn't include flogging anymore

odinsgrandson wrote:Wow, I sure hope not. Unless they've passed the bar exam in the US, they would be in a lot of trouble. In fact, I doubt that they could even send the cease and desist letter on GW's behalf if they hadn't passed the bar.

In-house counsel for a company are considered to be acting on behalf of the company, and therefore it would amount to "self representation" and not raise an unauthorized practice of law complaint (that only covers someone acting as a lawyer on behalf of another party). Note that other laws, for example misrepresentation or abuse of process claims could be raised if you said something stupid/unsupported in a C&D.

That's why when you send a C&D, you get a lawyer to write it, because you don't know the pitfalls.

odinsgrandson wrote:It is possible that the people instructing the lawyers have those problems, and I could see where some of these issues could come up. Although it is just as likely that GW is too large a company for anyone with actual power to be instructing the lawyers.

I doubt it, companies like GW will have someone managing their legal action at the executive level. That's why you have in-house counsel, they explain what the outside lawyers are doing to the executives and then translate the executives comments to the outside lawyers.

aka_mythos wrote:Thats why I said "draft"... a lawyer still has to sign off on it... even if they don't read it.

Although they should. Even if someone else prepares something for me I don't sign it until I read the document and make sure that it is accurate. Because when you sign something it's your arse on the line.

If a paralegal prepares a legal document for a non-lawyer who signs it, then the paralegal is engaged in unauthorized practice of law.

Infreak wrote:
I've been following this thread and I don't believe it's ever been mentioned that it was a C&D from GW UK. How do you know this? Or did I misunderstand and it's pure conjecture?

I know Nick the owner of CH, from producing a number of digital models for CH.

Just to get this straight, throughout CH have had legal advice of what they can get away with on their website?
In which case, those instances that have been cited above of CH flouting GW on their website had clearance according to that advice?

So it seems.

Advice can be wrong though.

Can I laugh now or maybe later.

Chibi Bodge-Battle wrote:Just to get this straight, throughout CH have had legal advice of what they can get away with on their website?
In which case, those instances that have been cited above of CH flouting GW on their website had clearance according to that advice?

Not "what they can get away with." They got advice on "what is legal." There's a great difference there. Your wording makes it sound wrong or illegal when, in fact, it is neither.

Just because GW said "you can't do this" or because someone thinks CHS *shouldn't have been" able to do it illegally doesn't mean they were doing wrong or "flouting GW." It just means they were following the law or, at least, making an honest attempt to.


Eric

Beg pardon you are correct Eric,and I should have phrased it much better than I did.
It was not intended to insinuate CH

I was just a tad surprised by Aka_M's statement. This suggests that rather than CH overstepping the mark naming GW on the website and pushing things too far, CH had some concept of what was legitimate if the advice received is indeed sound.

The reference to "flouting" is to several comments made in posts above rather than CH and again I apologise if my wording did not make that clear.

You are correct Chibi..

From the get-go, Chapterhouse knew about the angry GW beast, and retained counsel to help them avoid potential issues.

Kroothawk wrote:
Must have been a big shock for the Nottingham HQ that the colonies (including France) now have their independent law
Guess that's why their revised set of demands doesn't include flogging anymore

Right. A US lawyer would only have demanded the death penalty, because every civilised legal system has that.

aka_mythos wrote:I know Nick the owner of CH, from producing a number of digital models for CH. He had initially kept me informed of his legal goings on, but all this stuff with the lawsuit has been relatively hands off and I really don't know anymore than you guys about this. I am however quite aware of the efforts he put into avoiding issues with GW by retaining a lawyer to ensure everything he was doing was within his rights. That his lawyer approved the wording and labeling of CH's products and was providing legal opinion on iconographical similarities of CH pieces relative to GW vs. patterns in the public domain. From what I know... GW, Nottingham a little over 2 1/2 years ago sent CH a C&D, that was, in the words of CH's lawyer at the time, "very poorly written." It cited British law while being poorly worded in addition to spelling mistakes (which in fairness I think could just have been differences between English and American spellings) and made a lot of demands outside the scope of what a C&D letter is meant to address while accusing CH of actions it had a protected right to do or hadn't even done at all. Writen and signed only by an uncertified GW paralegal, which is really no different than a legal secretary. CH's lawyer's response was that it was an improper communication from someone who if in the US wouldn't have had independent authorization to have sent it and that ignored jurisdictional consideration.

Notwithstanding all the learned comment in this thread on the status of paralegals, a 'cease and desist' letter on GW notepaper (assuming that's what you mean by saying it was from a 'GW paralegal') is still a valid communication from GW. Whether the demands made were lawful/appropriate is another question - the point was that GW had an issue (rightly or wrongly) with what CH was doing. Do you ignore that and thumb your nose at them because it's not from a US attorney?

porkuslime wrote:From the get-go, Chapterhouse knew about the angry GW beast, and retained counsel to help them avoid potential issues.

It's interesting how many of you assume that CH's legal advice must be correct. These issues aren't black and white, and (as Howard Treesong said) it's possible that CH and/or their lawyers didn't get it right. Rejecting a 'cease and desist' letter on the basis of technical arguments is an example of a possible error of judgment. Equally, CH could be entirely correct in their position, but this assumption is indicative of the bias of many of the comments here.

Tailgunner wrote:Notwithstanding all the learned comment in this thread on the status of paralegals, a 'cease and desist' letter on GW notepaper (assuming that's what you mean by saying it was from a 'GW paralegal') is still a valid communication from GW. Whether the demands made were lawful/appropriate is another question - the point was that GW had an issue (rightly or wrongly) with what CH was doing. Do you ignore that and thumb your nose at them because it's not from a US attorney?

They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

Tailgunner wrote:

Eldanar wrote:But I think there is a discrepancy in the possible perceptions that develop between UK and U.S. based litigation. While I don't think the UK courts are any more or less biased than the U.S. counterparts, the over all system of jurisprudence does tend to (or at least appears to, to my outsiders eyes) favor the big boys in the UK possibly a little more, just due to the overarching structure of its legal system and its rules. Things like the loser paying for costs, the ability to purchase injunction-like restrictions, etc., are two very different things that come to mind, and which allow for a very different environment for the legal processes to go forward. These have nothing to do with the bias of a court, but rather are structural differences within the two legal systems (and I am sure there are others as well, both pro and con, depending on your point of view).

You can obtain injunctions and other restrictive orders under US law as well.

The 'costs follow the event' principle is probably one of the most important differences between the US and English legal systems. I don't think it necessarily favours the big players, but that's a fair point. There are also restrictions under English law on how claims can be brought which tend to discourage class actions and individuals being funded by third parties, but these things cut both ways. Ultimately, litigation is costly, and that's an issue for both jurisdictions. When US and English lawyers discuss litigation, there are more similarities than differences, and the underlying tactics don't vary much. My original point is that it's not likely that any English lawyers advising GW have misunderstood the US position. If GW have over-reached then it's not necessarily due to bad legal advice or incompetence.

My point was not that you cannot get similar things in the U.S. legal system, like an injunction; rather that they are not quite as pro forma as some of the things I have read about concerning UK law (and I by no means profess to have any formal understanding of the mechanics of UK law at all). (In particular, I remember reading about some of the anti-defamation laws, where a wealthy UK celeb could pretty much purchase an injunction against having certain things disseminated about them for something like 100-200k BPS. This has absolutely no bearing on what is occurring here, but I just thought it was an odd quirky difference between the two legal systems, in what people might otherwise think would be two similar areas of the law; i.e., free speech/press, etc.)

There also tends to a be a little bit of confusion concerning the term "litigation." That is a fairly broad concept that encompasses every form of adversarial or even administrative law. Torts are usually what people think of when the term litigation is thrown around, and I agree that the strategies used, etc., are probably incredibly similar. Commercial law suits can be an animal of a different stripe though. And has been pointed out by many minds much more versed in U.S.-based and UK-based commercial codes than I am, there are some glaring differences to how the rules for copyrights, trademarks, fair use, etc., have been interpreted and applied in the two systems, and this is apparently where some of the disconnect is occurring.

Tailgunner wrote:

Kroothawk wrote:
Must have been a big shock for the Nottingham HQ that the colonies (including France) now have their independent law
Guess that's why their revised set of demands doesn't include flogging anymore

Right. A US lawyer would only have demanded the death penalty, because every civilised legal system has that.

Actually, GW did originally demand the "death penalty." They wanted CHS to destroy all their models, destroy the molds, and give GW a pile of money.

That pretty much would be the death penalty for a business like CHS.

aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

TBH I find that very hard to believe. What you are basically saying is that unless you have a lawyer then you have no recourse to the law? Having been in the situation of writing legal letters with regard to debt law, a correctly written letter, as long as the facts are correct, has as much 'weight' as a solicitors letter.

If GWs C&D letters clearly spell out the infringments then they should receive the same consideration as one written by Rumpole of the Bailey. Whether or not it was written or signed by the janitor. To ignore such a letter just because it wasn't signed by a solicitor, I would say is either risky, stupid or both.

Cheers

Andrew

AndrewC wrote:

aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

TBH I find that very hard to believe. What you are basically saying is that unless you have a lawyer then you have no recourse to the law? Having been in the situation of writing legal letters with regard to debt law, a correctly written letter, as long as the facts are correct, has as much 'weight' as a solicitors letter.

If GWs C&D letters clearly spell out the infringments then they should receive the same consideration as one written by Rumpole of the Bailey. Whether or not it was written or signed by the janitor. To ignore such a letter just because it wasn't signed by a solicitor, I would say is either risky, stupid or both.

Cheers

Andrew

In my understanding, such a letter must be signed by someone who has the authority to speak for the company. The janitor doesn't have authority, and a paralegal doesn't have authority. If the letter had come from the VP of Compliance, for example, or the CEO, it might be considered more relevant. When it comes from someone low down on the totem pole, there isn't even any way that the recipient of the letter can know that the position stated in the letter is the official position of the company who purportedly sent it.

aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

An order (or judgement) would come from the court, not a lawyer.

Kilkrazy wrote:An order (or judgement) would come from the court, not a lawyer.

Yes, I know, but the point still stands that anyone can send a C&D Letter, regardless of how they stand with the bar.

Unless one of our resident Lawyers can show me something I haven't been able to find yet stating otherwise, of course.

In my experiece limits of authority are given to most employees making it clear who can or can not send out information/letters and indeed to what level you can communicate with other organisations; so middle management should not contact other companies directors and should therefore raise it inhouse before making that approach. The reason being that even the letter from the Janitor does have weight to it if it is seen as coming from the company i.e. headed paper.

Platuan4th wrote:Yes, I know, but the point still stands that anyone can send a C&D Letter, regardless of how they stand with the bar.

Unless one of our resident Lawyers can show me something I haven't been able to find yet stating otherwise, of course.

Yes, anyone can send a C&D letter. A letter is just that, a letter. It carries no legal weight, it's simply the opinion of one person. It does have more weight coming from a lawyer than a paralegal.

However, there are some issues that arise. If the letter contains any legal conclusions, you'd better be right (or at least made in good faith with respect to the law) or you could be in trouble for illegal threats/abuse of process. If you want someone to send the letter on your behalf and you want them to make a legal conclusion, then they had better be an attorney, otherwise they're engaged in the unauthorized practice of law. Finally, even sending a letter opens you up to the potential for litigation (at least in the US) for a "Declaratory Judgment."

In the case where a paralegal for a company sends out a C&D letter, I assume the law treats it as originating from the company (therefore acting on its own behalf), although it's possible that the paralegal could get in trouble, either internally (exceeding her authority), civally (under agency law) or criminally (unauthorized practice of law).

Tailgunner wrote:Notwithstanding all the learned comment in this thread on the status of paralegals, a 'cease and desist' letter on GW notepaper (assuming that's what you mean by saying it was from a 'GW paralegal') is still a valid communication from GW. Whether the demands made were lawful/appropriate is another question - the point was that GW had an issue (rightly or wrongly) with what CH was doing. Do you ignore that and thumb your nose at them because it's not from a US attorney?

Legally, they had to ignore the advice in it if they wanted to keep their business, and that's true even if it were drafted by a US attorney.

A Cease and Desist letter is not a legally binding document for the receiver. In fact, most C&D letters go way beyond the scope of their legal boundaries. People who receive them need to seek legal counsel of their own before taking any actions.

See, if you receive one, and you say, "Ok, just to be on the safe side, I'll abide by it for now, and see if I can fight it later." then by abiding you have acknowledged the thing you were doing as infringement and your ability to fight said claims is crippled. It is messed up, but if you want to fight it, you have to take a stand immediately.

Chibi Bodge-Battle wrote:Beg pardon you are correct Eric,and I should have phrased it much better than I did.
It was not intended to insinuate CH

I was just a tad surprised by Aka_M's statement. This suggests that rather than CH overstepping the mark naming GW on the website and pushing things too far, CH had some concept of what was legitimate if the advice received is indeed sound.

The reference to "flouting" is to several comments made in posts above rather than CH and again I apologise if my wording did not make that clear.

Gotcha.
Yeah... Wording makes a difference. lol
I get you now.

I can't disagree that what CHS did was kind of like standing up to the bully in the playground.
He's only going to warn you so many times before taking a swing.

Time will show if CHS's legal-fu will be enough to bring down the bully a peg or if they were a bit overconfident in their katas. ; )

Eric

Saldiven wrote:
In my understanding, such a letter must be signed by someone who has the authority to speak for the company. The janitor doesn't have authority, and a paralegal doesn't have authority. If the letter had come from the VP of Compliance, for example, or the CEO, it might be considered more relevant. When it comes from someone low down on the totem pole, there isn't even any way that the recipient of the letter can know that the position stated in the letter is the official position of the company who purportedly sent it.

Thats the jist of it. Something glossed over is that it was what the UK calls an uncertified paralegel which is just a legal secretary... and while yes anyone may send such letters and there is a question of authority... it was just a component of the situation. I'd guess it had more to do with the other stuff.

MagickalMemories wrote:Time will show if CHS's legal-fu will be enough to bring down the bully a peg or if they were a bit overconfident in their katas. ; )

Time will show if GW's legal-fu will be enough to find anything legally relevant that Chapterhouse can be accused of. They haven't so far

Well, to be fair, I *was* trying to be as neutral as possible in the comment.
GW has no legal-fu. They're a fat kid on the playground with a big mouth. Now, they're got to put up or shut up & be shown for the blowhard that they are.

Eric