When is the Attorney-Client Relationship Created?

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.

Slip Op.

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).


27 thoughts on “When is the Attorney-Client Relationship Created?

  1. 5

    OT, but do you ever think about how you Dennis have fostered the destruction of patent law by providing a forum for the anti-patent forces?

    The other blog consistently has articles that examine the state of patent law and how we might be able to fix it. This blog has article after article by “academics” who are not even required to state the monetary interests and push out arguments as if they are scholarship to burn the patent system down.

    1. 5.2

      Do you and anon really have the exulted view that patent blogs and blog commentators have any real influence on Congress and the Supreme Court [even after all their decisions to the contrary]?
      Nor is “shoot the messenger” for reporting court decisions, as here, or occasional articles, that you don’t like, either effective or a good idea professionally.
      Legal academics publish their articles in their usual academic publications, and if they are cited by courts the cites will be to those publications, not their blog extracts. If you are aware of substantive IPL legal publications or decisions you like better, you are free to, and you should, hot-link them in blog comments here.

      1. 5.2.3

        Where is this ‘liking better’ coming from?

        You missed the point in at least these three different aspects, Paul.

        Maybe you should pause and examine your own proclivities.

      2. 5.2.4

        Paul, that load isn’t even worth my time picking apart. You have reached new lows.

  2. 4

    Two thoughts:

    “Relationship” is a tricky thing to define. We could ask an expert. How about a certain Mr Clinton?

    Looking at the excerpt from the transcript and the answer to the supposedly crucial question, I do not see how a guess at what is in the mind of the client does anything at all to define the start of the “relationship”. I mean, if Bill were to have reported on what he supposed Monica was thinking at the time, would that settle it?

    But it is all a bit sad, isn’t it? A fight over something of no value. As another commentator has already observed, foot baths for cloven-hoofed farm animals, full of diluted concentrated medicinal agent, are as old as the hills.

    Tip for Mr Eakin: next time, claim “doing it on the internet”, to bolster its patentable novelty.

    1. 4.1

      Ah, the jesting is rich in this one today.

      How about a certain Mr Clinton?

      To paraphrase, that depends on how one defines “how.”

      Fixed: “ next time, claim “doing it on the internet”, to bolster complete uncertainty and ‘luck of the panel’ draw.”

    2. 4.2

      As to experts, I have to wonder what Prof. Hricik (who contributes to this very blog) would have to say on this matter.

  3. 3

    As usual, the interesting facts [including citing the wrong provisional application number in the non-provisional application], only came out in patent litigation discovery.
    But even if malpractice is found a suit for it will not collect any damages unless the “case within a case” is won. That is, proving that but for the alleged malpractice there would have been a valid and infringed patent infringement damages recovery.

    1. 3.1

      Of course attorneys sued for malpractice, even if damages are not collected for it, are subject to bad PR, loss of other business, defense attorney fees, lost billing time, malpractice insurance premium increases, etc.

      1. 3.1.1

        Not to mention an almost automatic PTO OED investigation, with possible sanctions.

      2. 3.1.2

        All of which may well be beyond the control of an attorney who has done NO wrong.

        One of my original mentors stressed the importance of client management and either declining or VERY quickly firing clients with a propensity to sue (if the client did not get their way in everything).

      3. 3.1.3

        I should also stress that the very first ‘client’ of an attorney is the attorney herself.

        By this I mean, one must always be on the lookout first and foremost for oneself. Clients may well be unscrupulous and outright L 1 A RS. One has a duty to themselves to protect and preserve one’s livelihood (including, as Paul implicates, reputational factors).


              If you’re an attorney and you’re on the lookout first and foremost for yourself, you’re doing it wrong.

    2. 3.2

      Only half in jest, but in regards to the “case within a case” and the “but for” condition, I have to wonder Paul if you feel that it is entirely ‘within bounds’ to set as a defense the very Gordian Knot of 101 jurisprudence with arguments that THAT case within a case could not be proven to hold given how mercurial it may be to have claims tossed on the scrivenings of the Supreme Court’s 101 jurisprudence?

      1. 3.2.1

        Anon, the “case within a case,” IF it goes to trial [reportedly almost all are settled by the malpractice insurer] can theoretically raise any normal defense, but how likely is a state court judge going to understand or accept a 101-based preliminary motion akin to a federal 12(b)(6)?
        As to your point re withdrawing from representation of a problem client, it is surprising how few patent attorneys seem to properly do so formally on the PTO record re applications.


          Decent enough question:

          but how likely is a state court judge going to understand or accept a 101-based preliminary motion akin to a federal 12(b)(6)?

          I can easily set up enough contradictory cases (and statements from members of EACH of the three branches of the government affirming that contradictory nature) to easily cast doubt as to any ability of a client to establish their ‘but for’ position.


            Yes, the “but for” burden is easy to attack, but note that the defendant in a malpractice case is a lawyer, and guess what the average juror’s view of lawyers is? I have seen surveys in which lawyers were tied with undertakers.


              Does your question need a “presumed innocent” or “see Thomas More” type of answer?

              I think that “the average juror” can be rather easily shown that some clients are far worse than any attorney that my be involved in a run of the mill IP case (distinguishing attorneys whose goal it is to protect innovation and who have (typically) engineering degrees in addition to JDs from the ‘general’ unscrupulous attorneys who “chase lawsuits” is rather easily done, eh?

    3. 3.3

      Is there an actual case to point at where someone lost a malpractice case but won on the fact that the patent was worthless – thus no damages?

      I contend even if I filed the patent on the day I was contacted to do the conflict check, the patent would be worthless as invalid as obvious over 100 other patents – put me in federal court.

    1. 2.1

      Interesting implications for personal injury attorneys who reach out to prospective clients via television commercials. They never mention statute of limitations, yet they know their information is being consumed by prospective clients.

  4. 1

    “potential bar dates?”

    I dunno know, Dennis. I’d always heard that attempting to date those at bars . . . carried an elevated risk of down-the-road relationship “challenges” . . .

    Jus’ sayin’ on a Sunday. 🙂

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