When Co-Counsel’s Violations are Your Own.

This case, Martin v. Giordano, (E.D.N.Y. Aug. 18, 2016) is not a patent case, but it is a sad and awful read with a sad and awful lesson that should be known to patent litigators, which is:  sometimes you may be held responsible, jointly, with co-counsel who has violated court orders, including Rule 16 scheduling orders.

This one is a doozy, with the judge “sadly but without hesitation” publicly reprimanding two lawyers.  The lead lawyer, Lawyer A, repeatedly missed deadlines and, in the final straw, actually lied to co-counsel who got a continuance based upon the lie that Lawyer A’s mother had died.  (The court correctly holds that, though false, the statements did not violate Rule 11 because they weren’t presented in writing to the court.  I’m not making that up.)

The judge found co-counsel “should have known” that a lot of the earlier excuses were also suspect, and publicly reprimanded both lawyers.

It’s quite a sad read all around.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

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