the Zealous

From Charles Silver, A Private Law Defense of Zealous Representation, U. of Texas Law, Public Law Research Paper No. 638 (2020):

Moral philosophers object to the ethic of zeal, also known as the fiduciary duty and the principle of partisanship, because it requires lawyers to ignore any adverse effects that lawful actions beneficial for clients may have on third parties. For example, when representing a landlord, a lawyer may not refrain from evicting a tenant family that is behind on the rent for fear that the children will wind up on the street. Because harms inflicted on third parties normally bear on moral assessments, philosophers contend that lawyers who ignore them are amoral, immoral, or morally stunted.

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A recent US district court decision in a lawsuit brought by Facebook and Instagram carries important lessons for counsel in the drafting and negotiation of survival clauses—clauses that purport to extend the operative effect of contractual obligations beyond the termination or expiration of the relationship.

The case is Meta Platforms, Inc. v. Bright Data Ltd. (ND Cal 2024).

Meta Platforms, the owner of both sites, brought a breach of contract action against Bright Data, alleging that Bright Data violated online terms of service and use by scraping (anonymized) user data and selling access to analysis of it. The terms of both sites prohibit the collection of user data via automated means and the selling of such data.

In adjudicating cross motions for summary judgment, the district court held that the Facebook and Instagram terms do not prohibit logged off public data scraping even during periods when the scraper has an account. More importantly, scraping after termination of such accounts, the court ruled, was likewise not prohibited—despite the existence of a survival clause that purported to extend the applicability of the anti-scraping clauses beyond termination of the user’s accounts.

Viktor Ovsyannikov has been practicing law as a public defender since 2018 with the Free Legal Aid Centre in Kyiv. He characterizes his career choice as "addicting," and one that causes his mother to occasionally "drink buckets of sedatives."

One of his first clients was the disgraced ex-president of Ukraine, Viktor Yanukovych, accused of treason in absentia. Yanukovych had retained five lawyers, but they left the session in protest. As a consequence, the criminal court asked the Free Legal Aid Center for a state-funded lawyer to protect the defendant’s rights.

Ovsyannikov was posted. He describes the experience: “The [Center] never gives the client's name first. They say you have an appointment for the defense tomorrow at 9 am. 'We'll send you the file and you'll see.' When I saw [that it was the Yanukovych case] my sleep vanished just like that." (Yanukovych was sentenced to a 13-year prison term for high treason, and is now living in exile in Russia.)

Like most Ukrainians, Ovsyannikov recalls with vivid detail the events of his life on February 24, 2022, the day Russia invaded Ukraine.