Nice Work If  You Can Get It

When are 27 lawyers better than one?

When you are the Church of Scientology arguing that church tracts are trade secrets.

Some of the country's leading intellectual property lawyers cashed in as Scientology battled last year with The Washington Post over a story that quoted brief passages of church documents. Not content to rely on briefs alone, the church took the unusual step of paying 27 IP lawyers -- including luminaries such as Roger Milgrim, a partner in the New York office of Los Angeles's Paul, Hastings, Janofsky & Walker, and Ralph Oman, U.S. register of copyrights from 1985 to 1993 -- to file affidavits giving their expert opinions on copyright and trade secrets issues. Though expert testimony ordinarily is not admissible on an issue of domestic law, these lawyers together produced more than 400 pages of legal expertise.

The Post's quotes had been taken from Scientology works that had been posted on the Internet by a disillusioned former church member. The church maintained in a suit in federal court in Virginia that the works both constituted trade secrets and were copyrighted, and it sought an injunction against the Post to barring future quotations.

Milgrim wrote a 30-page, double-spaced declaration, and Oman, now counsel in the Washington, D.C., office of Philadelphia's Dechert Price & Rhoads, penned 25 single-spaced pages with 100 footnotes. Other affiants included  Thomas Smith of Chicago's Lee, Mann, Smith, McWilliams, Sweeney & Ohlson, immediate past chairman of the American Bar Association's intellectual property section, and Thomas Creel of New York's Kaye, Scholer, Fierman, Hays & Handler.

Some lawyers turned down Scientology's overtures, however, including Bruce Keller and Jeffrey Cunard of New York's Debevoise & Plimpton, as well as one Atlanta lawyer who requested anonymity. Keller and Cunard were approached separately, but both felt that a document publicly available on the Internet could not remain a trade secret, according to Cunard.

Paul, Hastings's Milgrim admits that an affidavit from a lawyer claiming to be expert on the law "usually is frowned upon," but says that this "is an unusual case" because of the novel issues involving dissemination over the Internet. Helena Kobrin, a solo practitioner in North Hollywood, California, who represents the church exclusively, says it submitted many affidavits because the Post and the former church member were engaged in "copyright terrorism." She says she has "no idea" how much the expert affidavits cost, but says they were "a substantial expense," adding, "It's directly proportional to the importance of the issue."

A church spokeswoman says that the lawyers were paid their ordinary rates. "There were no premiums paid," she says -- a fact confirmed by Milgrim and Evan Katz, a partner at New York's seven-attorney Monroe Partners International, another expert. Neither would say what their total bills were, however. (Oman, Smith, Creel, and one other expert contacted declined to disclose their fees.) If the experts spent just a half hour on average to research and write each page -- perhaps a conservative estimate for the citation-heavy, brief-like declarations -- at an average of $250 per hour, the novel tactic would have cost the church $50,000.

In the end, the judge was not moved by the assembled expertise, however. "It is clearly the law of this circuit and the practice of this court that we do not permit attorneys to express their opinions as legal experts on questions of law," said Judge Leonie Brinkema at a November 9 hearing. "That's my job."

On November 28 she ruled that the quoted passages were not trade secrets to begin with and that the Post's short excerpts were "fair use" under copyright law, dismissing all claims against the newspaper, plus the trade secrets claim against the former church member.

-- Sherrie F. Nachman