by John Berryhill
Webposted on 04 April 2000
Every code of professional conduct includes an admonition for attorneys to be "zealous" in advancing their clients' interests. To do otherwise is to commit malpractice. The letter of Professors Post and Froomkin on the subject of monitoring the selection of domain name arbitration providers by complainants completely ignores the fact that there are essential and substantial qualitative differences in the provider organizations. The differences among the provider organizations is relevant to the attorney's duty to be zealous.
The rational zealot is not going to choose a panel selected from among group of academics to arbitrate domain name disputes, instead of choosing a panel selected from among practicing trademark attorneys. I had once raised the issue of the economic realities that bear on having $200 an hour attorneys adjudicate disputes for a fee of $750, as it the current situation with the WIPO roster. Prof. Froomkin noted in response that it is more likely that academics are going to be motivated by concerns such as "justice" or "fairness", rather than breaking even on the dispute fee relative to their billing rate. Perhaps it is an unfair or incorrect perception, but I believe it is likely that academics may be perceived as being more likely to give more weight to such considerations than others.
Clients do not pay their attorneys to to obtain "justice". Clients pay attorneys to win. The last thing the zealot-for-hire wants in a jury or in an arbitrator is someone who is going to think. The zealot wants someone who is going to listen to be persuaded to find in the client's favor. Period. If the zealot can find someone who is pre-disposed to do so - even better.
Now, in the case of eResolution, we've got a potential arbitrator, Prof. Froomkin, whose name, at least, is associated with IcannWatch. If I take a look at IcannWatch, the degree to which all of the materials there may or may not be endorsed by Prof. Froomkin is not clear. However, it is crystal clear that there is material on that site which is critical of the UDRP in that the UDRP is perceived to favor trademark holders.
So, what is the attorney's choice to execute the legal duty to zealously advance the interests of the client? Pick an arbitration provider wherein at least one of the members is known to have some kind of association with material critical of the interests of trademark holders with regard to the UDRP? For what? To save $250?
Prof. Froomkin is widely, properly, and laudably credited with influencing the drafting of the UDRP in the direction of fairness to domain name registrants. His contributions to that process were substantial, good, decent, just, and fair. It is good for the sake of Justice that someone on the panel had at least some concern for free speech, fair use, personal expression and identity, and the difference between commercial and non-commercial behavior.
These contributions, which I applaud and admire, qualify Prof. Froomkin as perhaps the last man on earth that an attorney would want to get anywhere near deciding a dispute for a trademark client.
The way that the dispute resolution structure is set up appears to be designed to do precisely what Profs. Froomkin and Post assert to be bad results in their letter. By deciding to accredit arbitration provider organizations, rather than accrediting individual arbitrators (and then randomly assigned cases among the pool), the only incentive for the successful provider is to consistently find for the complainant. Hence, it is clear that any pro-registrant provision that managed to sneak its way into the UDRP can be effectively negated by the overall incentive structure built into the way that the UDRP is administered.
Statistical arguments of the type advanced by Prof. Post and Prof. Froomkin about complainant success rates are not very persuasive in attempting to show that a provider organization isn't being "fair". This type of issue has been hashed to death in the debate over whether the public should have access to success/failure rates for hospitals or doctors in performing different sorts of medical procedures. If, for example, a hospital knows that it is being ranked according to how many patients survive appendectomies, then that hospital is going to "cherry-pick" the low-risk cases.
Similarly, lawyers are generally proscribed from advertising success statistics, since such statistics are deemed by bar associations to be "misleading" in that they do not reflect the individual circumstances of each case handled.
How could a provider cherry-pick the available disputes (even if there were some incentive to "appear" fair, which there is not)? Simple. The rules specifically allow a provider to close the ticket window whenever that provider deems it necessary. "Oh, sorry, we're too busy right now, come back next week...." and the complainant will file with one of the other providers. Hospital emergency rooms collude with ambulance companies to do the same thing all of the time.
Hence, even if there were some sort of statistical monitoring of the dispute providers in place, the statistics may be meaningless in view of the individual facts and circumstances of each case.
At the time of this writing, one of the dispute provider organizations is displaying, on their front page a headline proclaiming that a "cybersquatter" has been "evicted" from a domain name. This dispute provider is not advertising the quality of its Justice - they are advertising the efficacy of their results to the relevant market (i.e. the complainants). Similarly, another one of the providers boasts of how they are the first to "go after cybersquatters" with their online filing system. Any provider organization interested in maintaining economic viability should pay heed. A $200 an hour attorney has very few hours to waste in reading the complaint and the response, making a decision, and reducing that decision to writing. Given the absence of accountability and the economic incentive for deciding for the complainant, the zealot-for-hire is going to prefer an arbitrator who has due regard for the bottom line.