The story, hopefully not behind a paywall is here.  It’s not quite clear from the story, but it seems that the patentee had several lengthy meetings with one set of K&L Gates lawyers about some of its patents, but, for whatever reason, did not retain the firm.  The, after the patentee filed suit, K&L Gates showed up representing the defendant.  After the firm filed a response to the motion to disqualify, it announced it would withdrawn to avoid the cost and delay of the motion on its client.

This implicates (in many federal courts) Model Rule 1.18, or its state analogs, a rule that is not on a lot of lawyers’ radar.  Essentially, it provides that a law firm owes duties to a client who in good faith seeks to retain the law firm.  The firm can obtain consent, set up screens, and take other steps to avoid a conflict under the rule, and it may be that’s what K&L Gates did here.

If you do “beauty pageants” or “dog and pony shows,” read Model Rule 1.18 and take advantage of some of its safe harbors, to protect yourself, your prospective client, and later potential clients.

The newspaper story is here.  It seems that Hunter Douglas alleges that its (now former) in-house IP lawyer created an entity and then hired it to do work, at exorbitant rates, that was never done.  The entity then billed the company for $5 million over a few years.

If true, just to be clear, that probably violates a few rules!

For years now, my colleague Karen Sneddon and I have written a column, “Writing Matters,” for the Georgia Bar Journal.  We try to make it meaningful to lawyers and think we’ve accomplished that goal.  What I’d like to know is what bugs you?  I don’t want to even suggest ideas so fire away.  We’re going to put together future columns that address those that we haven’t, yet, covered.

Rant away!

Speaking Monday in D.C. at the Association of Intellectual Property Firm meeting, details here.  Then speaking Tuesday in Wilmington at the duPont-Widener CLE, details here.  I’ve not spoken to the former group before, I don’t believe, and have for several  years in a row now spoken at the duPont event, which is wonderful if you can make it.

The story is, hopefully not behind a paywall, here.  I tried to find the pleadings to post but had no luck, even on Pacer.  MV Circuit is the plaintiff, claiming Kilpatrick conspired with its client, Omnicell, to patent MV Circuit’s technology concerning some “Riocart” technology in Omnicell’s inventor’s name.  The gist of the complaint according  to the story is this:

Omnicell allegedly told MV Circuit that, in order to determine the value and patentability of MV Circuit’s intellectual property, MV Circuit needed to disclose its confidential intellectual property to William Daley, Omnicell’s attorney at Kilpatrick Townsend — even though Omnicell had already determined the technology was patentable.

Omnicell falsely represented to MV Circuit that Daley was not Omnicell’s regular patent counsel and would not be involved in developing any patent applications on Omnicell’s behalf, the complaint said. Omnicell further falsely claimed the Kilpatrick Townsend attorney would not disclose MV Circuit’s intellectual property to Omnicell, according to the complaint.

However, MV Circuit claims that neither Omnicell nor Daley told MV Circuit that the firm was in fact Omnicell’s regular patent counsel and that partners from the same Denver office of Kilpatrick Townsend as Daley were working on Omnicell’s nonpublic patent applications related to the technology in the RIO Cart, according to the complaint.

In re Lehat reads like a law school final exam.  The facts are a little unclear (be sure to read the opinion) as to some issues, but the facts seem to be as follows:

The lawyer was doing trademark work for the office, but was not registered to prepare patent applications.  He acquired a client through a legal services program provider he worked for who needed a patent filed on an improvement to a hair weave system.  (If you have seen my picture, or me, you will know I am not its target audience.)  Rather than simply refer her to a patent lawyer, or get a proper fee division agreement (e.g., he would receive fees in proportion to the work, which would have not been much) he took $5,000 from the client.  He paid $3,000 to a practitioner to prepare the case, who later returned $2200 of it, saying that he had really earned $800.  The practitioner thus had $4,200.  He did not put any part of the $4,200 he kept into his trust account, but deemed it a “relationship fee” that was earned upon payment.

The client brought a state action seeking refund of the $5,000 and the lawyer took the position that the $4,200 was his.  He seemed to assert both that he was reasonably billing $1,000/hour as a “relationship attorney” and that the $5,000 was a flat fee that was predicated on 5 hours work at $1,000 per hour.

The OED did not agree.  Based upon mitigating factors, it gave him a public reprimand and ordered him to return the money.

It is interesting to me for two reasons.  One is: only a reprimand?  The second is that the opinion discusses the distinction between a general retainer — earned upon payment, and is paid simply for the lawyer to be available in the future, at which time he’ll bill his hourly rate — and a special retainer, which we usually think of as an advance on fees, which goes into the trust account and is drawn down as the money is earned.

One of the many things that surprised me when I became a professor 12 years ago is the “law review game.” What happens is this: prof writes an article and sends it out to a ton of journals. Once he gets one acceptance, he then tries to “leverage it up” to “higher” journals. If he gets a higher one, then he tries again. It’s led to all sorts of things — expiring offers to publish, and so on, as well as writing that is intended to be published in journals “at the top,” which may or may not reflect what lawyers and judges want and need to read.

It’s all silly. Law students have no clue as to what is good writing, or important subjects, and so they go by labels (“ooh, a professor from harvard wrote this so it must be important” and the converse) or, imho, whether the article fits with what they’re being taught in law school (so, students at the more “theoretical” schools will think theory is what is important to “the profession,” whatever that means to them).

Of course, all scholarly work is now on line and so accessible by searching. So, placement in the sense of getting information out means absolutely nothing and, perhaps, the opposite if the “profession” includes most practicing lawyers, who read predominantly bar journals and practice-specific materials (the latter, such as “the X law school journal of law and technology” are generally not viewed by law profs as being as good as the law review of school X).

This leads to law professors trying to further their careers by openly admitting they write for a small segment of students at “high end” law reviews.  Usefulness to lawyers, judges, legislators… not much of a factor.

In my own view we ought to be writing for judges and lawyers, not each other or for second year law students at Harvard.

Sigh.

In the Matter of Druce, Proc. No. D2014-13 (OED Sept. 5, 2014), a practitioner admitted to neglecting matters entrusted to him by not preventing his non-lawyer assistant from cutting and pasting a digital version of the lawyer’s signature onto petitions, fabricating emails to the Office, doctoring postcards to show receipt by the Office of papers, falsifying Express Mail labels, and backdating certificates, among other things.   The lawyer did not know of the conduct, and in fact the non-lawyer assistant kept the information from the lawyer.  The lawyer agreed he had not adequately supervised the non-lawyer.

This case, KI Ventures, LLC v. Fry’s Electronics (Fed. Cir. Aug. 28, 2014) is really a fun read.  The panel reversed the judge’s sua sponte dismissal, with prejudice, of a patent infringement suit.  Among other things, the judge had issued an “order on confusion.”  (Which is classic Judge Hughes.)  You need to read the case to see how much of the transcript the panel quoted (for a reason, I assume) but here’s a sample:

When I read this odd non-prec per curiam opinion, I had several thoughts.  The panel consisted of Judge Newman, who authored the now-overruled Brooks Furniture decision, along with Judge Mayer and Lourie.

First, as a non-prec opinion it went out without the imprimatur of the court as such. Sort of odd since they had asked for additional briefing after remand from SCOTUS.

Second, the opinion refers to Brooks as the “then-authoritative test,” when, in fact, it was a panel decision that had already been chipped away at prior to Octane coming by, and which as I and others have shown was at odds with prior panel decisions of the CAFC.  (And, which SCOTUS held was wrong.)  It is an interesting choice of words, in other words: it seems defensive.

Finally, the defensiveness or some emotion like it comes through with the panel’s repeated statements that 285 remains an issue for discretion, even in exceptional cases.  I don’t know if that was simply a message to remind the district court on remand that there is still discretion to deny fees, or what, but it seemed odd to me in this nonprec per curiam remand.

Just my two cents.

There’s a story here about how a lawyer told his young associate to go to the jury assembly room to take notes about potential jurors.  She did so, but court staff recognized her, made her leave, then told the judge.

The judge dismissed the jurors (bet they were sad about that), but refused to order the lawyer to turn her written notes over to the other side.

I just spent a day — a full day — as a potential juror at Dekalb County superior court here in Georgia, and you wear a sticker around that indicates that you’re a juror, so I’m not sure someone could sneak into that room (nor how much they’d learn if they did).

Don’t do this…

Hmmm… here’s one professor’s take at Forbes.  I don’t know him, but I’ve got to say that he’s not very cognizant of realities, imho, at least if he seriously believes this and it’s not a Modest Proposal type thing.

Here’s how he describes what should make the decision:

Are you interested in pursuing Justice, in making the world/your country/your state a place  governed by the Rule of Law, freer from predators and safer from tyrants than it currently is?  Are you interested in helping the 50% of Americans with legal problems who cannot currently afford legal help to resolve them?  Are you interested in soberly attempting to understand and solve the incredibly difficult, and incredibly interesting, intellectual problems that underly so many of today’s legal disputes, and that are so misconstrued by a journalistic profession obsessed with political correctness?  IF so, welcome to law school, we need you  badly, you will find your studies fascinating and enriching, and you will be able to make a real difference in the world.    There is no subject more difficult than Law, because of its encyclopedic nature (nothing is irrelevant!).  And there is, I think, no subject more important today.

On the other hand, if you’re in law school because you didn’t know what else to do after your BA, because you hate Math (and erroneously think Law doesn’t require Math skills) and the sight of blood, therefore couldn’t be a physician, and have no goal other than to make a lot of money, and if you dislike work but have always relied on your IQ and adrenaline to ace all your courses, well, you chose the wrong generation to go to law school.  Get thee out now whilest  a partial refund of  tuition is still available.