Question: When you first talk with a new potential client, do you ask about potential bar dates?
Eakin Enterprises, Inc. v. Stratton Ballew, PLLC, 2020 Wash. App. LEXIS 691 (Wash. Ct. App. March 24, 2020)
John Eaken publicly displayed his cattle-foot-bath invention and then waited more than a year before filing a patent application. During that time, Eaken had called-up a patent attorney (Svendsen, then of Stratton Ballew) who spoke to Eaken before running a conflict check with the firm. During the call, Svendsen did not ask the status of invention development, or whether it had been on public use or display (or would be in the near future). Eaken then hired Svendsen
Eaken later learned that his public displays would limit his patent protection and then sued the firm for malpractice. The district court, however dismissed the case–holding that there was no duty-to-warn until the the creation of an attorney-client relationship and that the initial screening call did not create such a relationship.
On appeal, the Washington Court of Appeals has reversed — asking the lower court to delve deeper into whether an attorney-client relationship had been created. The reversal – I believe – was primarily based upon one answer in Svendsen’s deposition where he stated that the client considered their relationship to have started in the fall of 2006:
Q When do you believe the attorney-client relationship began for the effort to get a patent for the cattle foot-bath system?
A I would say that that would have been in the mind of John Eakin and — and is a big part of that. And I’m sure he considered this in the fall here of 2006. That that—that relationship was—a formal relationship had started.
One of the judges wrote in dissent — arguing that Eaken failed his burden of producing sufficient evidence to prove the existence of an attorney-client-relationship.
Note about the invention: The cattle-foot-bath seems all spa-like when you hear the name, but actually it is a mechanism for coating the feet with chemical fungicide (concentrated medicinal agent).