Wednesday, April 7, 2010
The North Carolina State Bar has filed a complaint alleging that an attorney researched a possible claim on behalf of a client who he represented in a patent infringement suit. The possible claim involved the deceptive use of a name or patent number in order to induce a public belief that a product is covered by a patent when it is not.
According to the complaint, "[the attorney] chose to reserve the research and the information...for a possible future claim against [the opposing party in the patent infringement suit]." The attorney then joined another firm and, it is alleged, used the research and confidential information that he had learned from the earlier case without permission of the client. The complaint charges violations of the duty of confidentialty and the duties owed to a former client.
The accused attorney's pro se answer admits certain facts but denies any ethical violations. The answer also contends, among other things, that the State Bar lacks subject matter jurisdiction (why and how is not explained), that the doctrine of laches bars the complaint, and that the confidentiality rule is "constitutionally overbroad."
Is it unethical to develop a legal theory while representing one client that is withheld and later used to benefit a second client in an unrelated matter? I see a tough road for the State Bar here unless there is smoking gun evidence of bad faith on the part of the accused attorney. (Mike Frisch)