Asking about Upcoming Bar Dates

Follow-up survey from on my post regarding Eakin Enterprises, Inc. v. Stratton Ballew, PLLC2020 Wash. App. LEXIS 691 (Wash. Ct. App. March 24, 2020).

When is the Attorney-Client Relationship Created?

 

13 thoughts on “Asking about Upcoming Bar Dates

  1. 5

    BTW, as recently demonstrated, filing patent suits on a patent with a bar date invalidity can also lead to an inequitable conduct decision against the inventors and their attorneys: In GS Cleantech Corp. v. Adkins Energy LLC, 951 F.3d 1310 (Fed. Cir. 2020).

  2. 4

    Interesting responses. I don’t actually bring in clients for my firm, so I have no idea. But on a personal level, I frequently have friends, acquaintances, and friends-of-friends who know that I am a patent attorney and so they ask me questions. I make sure I point out two things to them – (1) I am not your attorney and they should find one if they are to proceed; and (2) if they are serious about getting a patent (most of them aren’t, they are more curious or have had an idea floating around for decades but no real action), there are hard deadlines they have to meet once they start talking to people about their idea. I usually also ask about their business plan, and where a patent would fit in, because 9 times out of 10, these people have no idea what they would do if they actually got a patent, or what its value might be, or what kind of scope would be useful, etc.

    1. 4.1

      +1

  3. 3

    There are also certain ethical duties to “prospective” clients prior to forming a formal attorney-client relationship. See, for example, 37 CFR 11.118.

    Whether a duty to conduct a conflict-of-interest check with “reasonable diligence and promptness” and to promptly inform that prospective client of the outcome of such a check is not entirely clear. I assume the answer would be yes to ensure that no one is denied timely access to needed legal services. If so, that aspect of the prospective relationship would need to be further explored on remand to the lower court to determine whether there was or was not sufficient diligence on the part of the firm toward their prospective client and whether it would have made any difference in this particular case to the client’s loss of rights.

  4. 2

    From the opinion you cite:

    “The existence of the relationship turns largely on the client’s subjective
    belief that it exists. [Cite omitted]. The client’s subjective belief, however, does not control the issue unless it is reasonably formed based on the attending circumstances, including the attorney’s words or actions. [Cite omitted].”

    This is the test I recall from law school and has always been the backbone for my practices. Since it defers to the client I always tell the client during a first interview that there is not an attorney-client relationship before they sign an engagement letter, regardless of the facts shared, and I am always sure to follow up with an email stating the same and asking them to respond if they do not understand.

    In the absence of best practices, the twitter poll here could go either way. Asking could negatively affect the attorney if asking such a question is considered evidence of establishing an attorney-client relation, as a potential client could reasonably believe that the attorney has started to analyze and take care of the case. On the other hand, failing to ask could potentially open the lawyer up to a malpractice claim if an attorney-client relation is considered established based on other evidence. This second assertion is supported by the poll above, which currently shows that the standard approach is by far to always ask on the first interview.

    Given the above, I think this poll simply underlines the absolute need to establish best practices for providing clarity about the nature of the attorney-client relationship from the first conversation and throughout the entire representation and beyond.

  5. 1

    First call? Never.

    Who would do such a thing before a formal (or even informal) conflict check could be run?

    This sounds like a judicial body without a clue (and an attorney who is likewise without a clue, given his answer — and supposing that the answer was not taken out of context).

    I would recommend some basic Ethic CLE training for attorneys answering anything other than “never.”

    1. 1.1

      Anon, what happens if prospective client calls you for a free consult and you give him the typical friendly 30 minute courtesy chat about filing a patent, etc. that I assume most of us do for free. But you do not mention statutory bars. He tells you he’ll finish building his invention and get back to you. Turns out he disclosed his invention 11 months prior to his call to you. When he calls you back one month later, he then retains you as a client, you then do the diligence check and inform him he is now barred. Client gets pissed and says “why didn’t you tell me about this before?” Do you really want to be on the receiving end of his anger? I’m not sure your approach is correct.

      1. 1.1.1

        Front end of ANY such conversation is the clear understanding that attorney client relationship is formed.

        I do not discuss any specific particulars of the person’s actual items, and make clear that there is no way to cover even remotely everything a person would need to know.

        It is asinine otherwise to suggest that ANY “thirty minute friendly conversation” could possibly cover every single thing that might “trip up” anyone.

        1. 1.1.1.1

          i agree that no way could a 30 minute call cover everything that might trip up someone. But stat bars are quite important, don’t ya think? you may be on the winning end if a malpractice suit was filed against you in that circumstance. But why even deal with all the headaches? D.C.’s approach may be the correct one: link to twitter.com

          1. 1.1.1.1.1

            I don’t have to deal with any of it with my method, thank you very much.

            1. 1.1.1.1.1.1

              LOL, one day you might. I wouldn’t want you working at our firm.

              1. 1.1.1.1.1.1.1

                Your feelings are noted. And if you would not want me, the feeling is most likely mutual.

                And I get the better end of that deal.

    2. 1.2

      You’re doing it wrong. As a litigator, on every initial call a potential client is told that there are possible deadlines and statutes of limitation that may apply to his claim, but that you cannot advise him on what those might be. Smart ones follow that up in writing. Even smarter ones put it on their web contact forms.

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