William Carleton, Counselor @ Law

Summer 2013

In recent weeks I've been following, and tempering, a preference to write about day-to-day things, places, thoughts provoked by what I am seeing and what I am reading.

As spring in 2013 Seattle tentatively turns to summer, I've decided I might go ahead and turn off the tempering and just write my daily posts as though from a summer sabbatical.

The law will still make appearances, I'll bet, but I'm going to indulge my instinct to be counselor @ leisure for a season and see what happens.

William dreams of boilerplate

Shiro may dream of sushi, but has he ever visualized, in his sleep, the segregation of quarterly and monthly reporting obligations, to accommodate the deft layering in of a periodic reconciliation covenant?

Yours truly saw this happening in his dreams last night. Chunks of sentences picked themselves up off the page, rearranged, and made space for an insertion, then tightened up like blocks meeting at the bottom of a Tetris screen.

Photo: Paul Trafford / Flickr.

DIY privacy policies

Legal blogger Eric Goldman posted something provocative this week about privacy policies - provocative to lawyers, anyway.

He suggests you now have to be a bona fide privacy law expert in order to draft privacy policies for clients:

"Unlike the good ol' days, the average competent lawyer--and even the sophisticated cyberlawyer who dabbles with privacy issues--may be unintentionally treading towards the malpractice line given the number and complexity of the applicable laws and technology."

It's going to take me a couple cycles to figure out what I think of Eric's position.

In the meantime - or by way of turning one cycle - I want to express a contrarian view about when it is preferable to engage no lawyer, not even the most expensive from the biggest firm who practices nothing besides privacy law.

You are better off having your CTO, a product manager or VP of marketing punch out some common sense bullet points about how your service collects, uses and protects (or doesn't) personal information, than putting any lawyer to the task without giving her access to service specs, engineers or the product roadmap.

That is a very long way of expressing the first principle we covered in yesterday's post about Path, Facebook and Twitter: your privacy policy should describe, not aspirations, but what your company actually does with personal information.

Drawing: W.W. Dixon, Lawyer, Butte, MT, image taken from p 35 of Cartoons and Caricatures of Men in Montana (1907) by E.A. Thomson / Butte-Silver Bow Public Library / Flickr.

The Constitutional Oath

You can tell that President Obama and Chief Justice Roberts were anxious to get the presidential oath of office right this time around.

The one-minute ceremony was broadcast yesterday on C-SPAN, a few minutes before noon, Eastern time.

 

The Constitution says that a president shall take a prescribed "oath or affirmation" before entering "on the execution of his office," so there are good legal reasons to perform the oath not only correctly but also in a timely way.

The ceremony yesterday was timely, even arguably a few minutes premature. The Constitution, as amended by the Twentieth Amendment, says that a president's term "shall end at noon on the 20th day of January."

Here's the text of the oath from the US Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States."

The President and the Chief Justice flubbed it in 2008 by misplacing the adjective "faithfully." As I recall, the Chief Justice asked then Senator Obama to repeat that he would execute the office of president of the United States faithfully. The phrasing rang false.

But yesterday the pair again improvised, if insignificantly, on the Constitutional text.

First, the Chief Justice asked the President to state his name, after the first person pronoun. Second, the Chief Justice prompted the President to end the oath with the phrase "so help me God." These emendations sound okay because they are traditional. Should any strict constitutionalist president in the future drop them, she will take a lot of guff.

As in 2008, the Chief Justice prompted the President to state the last phrase by expressing it first in the form of a question addressed in the second person: "so help you God?" Why not? The words aren't Constitutional at that point, anyway. But to state the phrase as people expect to hear it, the President at that point has to abandon the Chief Justice's instructions to "repeat after me."

Brian Rogers considers lawyering in the startup ecosystem

This morning I suggest you go over to Brian Rogers' blog, where Brian has answered the question I posed to him last week: “Is a Startup Ecosystem Without Lawyers a Good Thing or a Bad Thing?”

I'm still reflecting on how Brian divides the startup ecosystem into three segments. He may be right about that, but I want to think about it a bit more.

For that segment of the startup ecosystem in which I think Brian is suggesting he and I work most, Brian recommends that more tasks be handled by nonlawyers within a law firm. That makes sense. But isn't a law firm that can deliver services without lawyers well on the way, possibly, to being something other than a law firm?

Those are just two initial reactions. Go read Brian's post as he has thought this through. He's advancing our important discussion on the topic of document standardization and startup legal costs.

Photo: JF Sebastian / Flickr.

Gun jumping

Last week, a New York lawyer and I were comparing notes over the phone about the proliferation of online financing platforms, ones catering, or purporting to cater, to private companies seeking funds from accredited investors.

The conversation began with a question. "Does it appear to you that many of these sites are doing things that are not yet legal?"

Indeed, yes.

Though lawyers will trade URLs of the suspect sites freely amongst themselves, they - we - are all circumspect about publicly tagging domains to doubts.

Though I'm on record for asking questions - not indicting or accusing but asking questions - about what FundersClub is doing.

A comment onf the FundersClub post, asking if I had considered Joe Wallin's post about rules on general solicitation, brought home how easy it is to forget that often Congress writes laws that don't so much make law as in effect tell agencies to write rules to make law. Here's an excerpt of how I replied:

What @joewallin is talking about in the blog post you link to is an SEC release with *proposed* rules to implement the lifting of the ban on general solicitation. The key qualifier here is "proposed." The rules are not final. Unfortunately, unlike other provisions of the JOBS Act, the lifting of the ban on general solicitation did not become effective once the President signed the JOBS Act. Instead, the law said that the SEC must first write rules to implement the change, and the change won't go into effect until the SEC promulgates final rules (unless, of course, Congress passes the legislation again, this time not requiring rulemaking, but I don't know anyone who thinks this is likely).

Gif: Gee Willi / Flickr.

Startup Riot Seattle locks me out

Startup Riot is holding an event in Seattle today.

I wanted to go. I submitted an application and paid the fee.

But I was rejected!

Was it because I practice law? I don't know. Can you tell from the email thread?

Update 10:58 PM Pacific: at Sanjay Parekh's request, I have taken down the screenshot of my email exchange with him. I have also asked him why I was excluded.

I wanted to go as the blogger, commentator and analyst I am of the startup scene.

Maybe my lawyer self is getting in the way of my blogger / mentor / investor / startuper self!

Update 10:47 AM Pacific: a loyal reader - and pillar of the Seattle startup scene - just sent me this picture of the event. Pretty quiet looking, for a riot.