A common practice for companies looking to designate a DMCA agent is to select their attorneys for the position. While attorneys can act as agents, it isn’t always the best move because of a quirk present in the rules and regulations attorneys must comply with when practicing.
There are no real limits on who can act as a DMCA agent for a company. The owner of the business? Yes. An employee? Yes. A third party such as ourselves? Yes. So, why then is there a concern about attorneys acting as DMCA Agents? The answer is found in a concept known as the conflict of interest.
Conflict of Interest
State bar associations license attorneys in each state. These bar associations set forth particular rules of conduct that must be followed by all attorneys. Many people mistakenly think lawyers are given the task of producing “justice” in a dispute. Nope. Attorneys have a duty to “enthusiastically” representing their client. At no point is justice mentioned. If the lawyers for both sides of a dispute take this approach, then the belief is a just result will be reached in the case.
You can form your own opinion as to whether this approach achieves justice. In many cases, it seems the result of cases boils down to whoever has the better legal counsel, but I digress…
So, where does a conflict of interest arise when your attorney is also the DMCA agent for your company? Well, let’s consider a copyright infringement lawsuit brought for a DMCA violation of one sort or another. Assume a copyright owner files suit against your business and your DMCA agent. Is your lawyer more likely to enthusiastically represent themselves as the agent or your business? A rather significant conflict of interest exists.
Conflicts of interest are faced by lawyers so often that bar associations specifically address it in their rules and regulations.
Rule 1.7 of the American Bar Association, for example, reads:
(a) …a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.“[ABA Rules]
Attorneys are often ripped for a lack of ethics, but there is a very human emotion at issue here. Is an attorney more likely to defend themselves in a lawsuit over the interest of their clients? You have to say yes.
So, how does one avoid this situation? Designate a third party agent to act on your behalf. Perhaps…us?