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Lawyers may now cite ‘unpublished’ opinions The U.S. Supreme Court last week adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1. The justices’ vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve more than 80% of cases in federal appeals courts nationwide. In some circuits these dispositions have no precedential value and cannot be cited. “Unpublished” is a misnomer, since most of these opinions are available now on legal databases. But some federal judges have argued that if this category of opinions can be cited and used as precedent, they will take more time to decide and write, sharply increasing the backlog of cases. Many sentencing appeals, for example, are resolved by unpublished opinions. The U.S. circuit courts of appeals for the 2d, 7th, 9th and Federal circuits ban the citation of unpublished opinions, while six other circuits discourage it. Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them. “This change will facilitate lawyers’ representation of their clients, and it will facilitate the courts’ informed decision of future cases,” said Kilpatrick Stockton’s Mark Levy, a member of an advisory committee that recommended the change. Orrick drive to double IP practice moves ahead Orrick, Herrington & Sutcliffe’s drive to double its 120-lawyer intellectual property practice this year has led to the hiring of Fabio Marino, who had been co-chairman of Bingham McCutchen’s patent litigation and prosecution practice. A rising IP star, Marino, 36, had helped lead Bingham’s patent practice since 2004. He has represented major U.S. and foreign companies in big patent cases. Marino’s move, announced last week, furthers Orrick’s plan to aggressively expand its IP practice. In 1999, Marino successfully represented Samsung in a patent infringement case brought against the Korean company by Japanese firm Semiconductor Energy Laboratory. He is currently representing Ciena Corp. in a case against Nortel Networks. The firm represents such clients as Intel, Cisco, Yahoo and eBay. N.J. ethics panel gives nod to paperless files New Jersey attorneys are free to ditch most hard copies of client records and archive them in cyberspace, as long as adequate measures to protect confidentiality are taken, the New Jersey Supreme Court Advisory Committee on Professional Ethics has ruled. Lawyers would still have to retain originals of some items, such as wills, deeds and executed contracts that constitute “property of the client” under Rule of Professional Conduct 1.15, but they would be free to clear file cabinets of paper copies of pleadings, memoranda and briefs, the committee said. The ethics inquiry was prompted by the ease and lower cost of storing documents in digitized form. Attorneys are required by rule to retain files for at least seven years, making computer archiving an attractive option. Thorp Reed may merge with Dinsmore & Shohl Pittsburgh-based Thorp Reed & Armstrong is in merger talks with Cincinnati’s largest law firm, 280-attorney Dinsmore & Shohl. While the talks have yet to produce even a letter of intent, Dinsmore & Shohl managing partner Clifford A. Roe said that both firms are general-service firms and a good fit for a merger. Both sides have stressed that the talks are in beginning stages. Media reports have said that it was Roe who initiated the discussions. With a little more than 100 attorneys, Thorp Reed has offices in Pittsburgh; Philadelphia; Wheeling, W.Va.; and Princeton, N.J. The West Virginia office would be a complement to Dinsmore & Shohl’s two offices in Charleston and Morgantown.

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