What the Story of a “Copyright Troll” Tells Us about Ethical Lawyering

In recent years, it seems that the public has become more acutely interested in the conduct of lawyers, with the worst of that conduct finding its way to the headlines for all to see. Perhaps the best way to insulate yourself from the risk of ending up in the news for the wrong reasons is to avoid the temptation to even slightly bend the ethics and professionalism rules. The story of Richard Liebowitz, an infamous “copyright troll,” offers an apt cautionary tale.

Liebowitz’s Prolific Practice

After passing the New York bar exam in 2015, Liebowitz wasted no time in building a prolific intellectual property litigation practice. In the Southern District of New York alone, he filed nearly 1,300 copyright infringement cases between 2016 and July of 2020. He filed thousands of additional cases in other jurisdictions. In the 15 days between March 11 and March 26, 2020, as the pandemic initially swept the United States, he filed 51 individual copyright suits in federal courts. Of course, simply filing a lot of cases is not grounds for discipline.

In October 2018, a court noted that of the 700-plus copyright actions Liebowitz filed to that date, over 500 were “voluntarily dismissed, settled, or otherwise disposed of prior to any merits-based litigation.” Some of these cases were likely settled because of Liebowitz’s “copyright troll” strategy of pursuing settlements priced just low enough that it was less expensive and less burdensome for a defendant to settle the claim rather than litigate. But a review of decisions shows that a substantial minority (here, several hundred) of Liebowitz’s cases did proceed to merits litigation, suggesting that many claims were at least plausible. 

Model Rule 3.1 Concerns: Even the Mundane Can Lead Lawyers Astray

Despite some presumptively justified filings, however, there are many glaring examples of Liebowitz’s complaints lacking any true basis in law or a good-faith argument for modification of existing law to warrant the action (as ABA Model Rule 3.1 of the Model Rules of Professional Conduct requires). For example, in considering a motion for sanctions against Liebowitz in May 2020, the U.S. District Court for the Southern District of Illinois observed that the filings in the action showed no basis upon which Liebowitz could have considered venue proper, leading the court to conclude that he likely filed the action as “a bad faith, frivolous effort to harass” the plaintiff. [Login required.] Similarly, in an earlier case, the U.S. District Court for the Southern District of New York noted that Liebowitz (1) had filed a complaint claiming a defendant transacted business in New York despite the fact that it did not; and, (2) in opposing the defendant’s motion for attorney fees and costs, did not even suggest he had any nonfrivolous basis for asserting personal jurisdiction. While it is unclear what exactly led to these types of improper filings, they serve as a reminder that even mundane procedural things like want of jurisdiction could render an action frivolous.

Model Rules 1.3 and 1.4(a): Checks on an Overextended Practice

Model Rule 1.3 requires lawyers to represent their clients with “reasonable diligence and promptness.” The comment to Model Rule 1.3 instructs that “[a] lawyer’s work load must be controlled so that each matter can be handled competently.”

Liebowitz’s story highlights that overextending in your practice can lead to ethical problems down the road. To put it simply, Liebowitz’s caseload was prolific and likely unsustainable. Liebowitz was counsel of record in hundreds of cases every year, raising questions about whether he could possibly represent his clients with the diligence that Model Rule 1.3 requires.

Indeed, at least one client filed a malpractice suit against Liebowitz in New York State court, alleging that he failed his duty of diligent representation by failing to pursue several of the plaintiff’s claims and ignoring his inquiries about the same. That client also alleged (inter alia) that Liebowitz withheld critical information regarding the suit and settled it without his permission. These allegations paint a picture of matters (allegedly) pursued without diligence and competence, and also repeated failures to communicate in conformance with Model Rule 1.4(a).

Model Rules 3.3(a)(1) and 8.4(d): Prohibition on “Fibbing” to Get Out of Trouble

Model Rule 3.3(a)(1) prohibits a lawyer from knowingly making a false statement of fact to a tribunal, while Model Rule 8.4(d), serving as a catchall for improper conduct that does not fit neatly within other rules, prohibits lawyers from engaging in “conduct prejudicial to the administration of justice.”

Liebowitz appears to have run afoul of both rules. Judge Cathy Seibel of the U.S. District Court for Southern District of New York held Liebowitz in contempt after he falsely claimed that he missed a discovery conference because of his grandfather’s death that same day. His grandfather had in fact died that month, but not that same day. When questioned, rather than admit to making a misstatement, Liebowitz dug himself into a hole, claiming in two letters to the court and four declarations of escalating intensity that his representation was true. The (skeptical) court ordered him to produce a copy of a death certificate or face contempt; rather than do so, he accused the court of usurping judicial authority and/or committing a breach of judicial decorum. Between the letters, declarations, requests for extensions, and multiple contempt orders, Liebowitz needlessly wasted valuable court resources on an issue that could have been cleared up with ease (and without newsworthy consequences).

Morals of the Story

Research suggests that minor ethical transgressions can lead to a slippery slope of gradually increasing unethical behavior over time—particularly where there is a financial motivation underlying the conduct. The Richard Liebowitz saga teaches us that what could start as a few too many cases can readily snowball into a caseload so daunting that it seems impossible to provide diligent and competent representation to your clients. What seems like a minor detail in a complaint can render a whole action frivolous for want of jurisdiction. And what might seem like a little white lie can balloon into a drawn-out, painfully public dispute with a judge over honesty and character. Cutting corners in what a lawyer may consider minor ethical areas can very well have real-life consequences for clients that have placed their trust in a lawyer’s skill and expertise.

Virtually all members of the bar can likely recall a time in their life when they have heard a rather unamusing joke about lawyers. No matter the joke, it is invariably a rip on lawyers as being some type of dishonest crooks. Despite modest gains in recent years, Americans’ views of the honesty and ethics of the legal profession remain dismal, according to Gallup. At a time when civil discourse, patience, understanding, and positivity appear to have been rendered relics of the past, it is more important than ever that our self-regulating profession act ethically and responsibly. By consciously learning and abiding by the Model Rules, lawyers can avoid falling down the slippery slope of ethical malfeasance and ending up in the news as yet another example of why the public lacks confidence in the legal profession. Further, by rooting their practice in a commitment to the Model Rules, lawyers will help restore and maintain honor in the legal profession, ensure adequate representation of clients, and protect the public at large.