What Were They Thinking?

Submitted by patentadmin on Wed, 12/09/2009 - 22:08

The past year has seen a growing trend towards clients suing their attorneys (actually, their former attorneys) for legal malpractice. While many of these suits may be well-founded, it would appear that one, at least, is not. (Leviton Manufacturing Co., Inc. v. Greenberg Traurig LLP et al.)

Leviton alleges that Greenberg Traurig, and three of its attorneys, were negligent in the prosecution of several patent applications and in the conduct of a patent litigation matter. Greenberg Traurig, and the three attorneys, have moved to dismiss those counts of the complaint which relate to patent prosecution and to either dismiss or, in the alternative, to stay proceedings with respect to those counts relating to the litigation misconduct.

With respect to the negligent patent prosecution, the defendants point out that the applicable statute of limitations is three (3) years measured from the occurrence of the alleged wrongdoing, not its discovery. All of the patent applications in question were filed well over three years prior to the filing of this action. Indeed, many of the patents issued more than three years prior to this suit. Moreover, Greenberg Traurig and one of the attorneys were not involved in the prosecution of several of the patent applications; they were filed and prosecuted by two of the attorneys before they joined the Greenberg Traurig firm.

As to the alleged litigation misconduct, the defendants point out that the case involving this conduct is presently under appeal and that the plaintiff has, as yet, suffered no injury. More interestingly, the plaintiffs argue, in the appeal, that the acts of the defendants were not improper. Thus, we have the unseemly situation of Leviton simultaneously arguing, in its appeal, that the conduct of the defendants was proper, while alleging, in its complaint, that the same conduct was negligent. Well, guys, which is it? And, by the way, don’t you think it’s unreasonable – not to say legally unsupportable – to be seeking damages when you haven’t, as yet, suffered any and – if the appeal is successful – will never suffer any? Why don’t you just wait to see how the appeal turns out?

THE LESSON TO BE LEARNED: While many people applaud when the tables are turned and the lawyers get sued, a suit such as this brings no credit to the plaintiff.

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