A Client's best interest v zealous advocacy

Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> If you feel your client probably doesn't have a case, aren't you acting
> in his best interest by explaining this to him, (A) so that he'll have a
> better understanding of what his rights actually are, and (B) so that he
> doesn't waste money and energy pursuing a case that probably won't work
> out? Aren't you being PAID to give him the facts, so that he'll be in a
> better position to decide what he wants to do?

In Oregon, as in most states, there are also ethical prohibitions barring attorneys from pursuing actions taken to simply to vex or harrass the opposing party, or when the attorney knows there is no good faith basis for the lawsuit. Just because there isn't a lawsuit *yet* doesn't excuse harassment. It could also be looked at as part of an unfair business practice, or prompt a complaint to the USPTO that the party is either using the registration as a *right* to protect their mark in a way that is unlawful, or wrongfully asserting rights they don't have. While it it doubtful that a poor litigant would know to write the USPTO, or would be able to afford an attorney who would pursue this line, it's something that would give me pause before I, on behalf of any client, mailed off a cease and desist letter that wasn't factually supportable. I have no problem with investigating the situation, but writing heavy-handed/threatening letters, or "offering" to negotiate with a naive party, when you don't really know what's going on, and when you know *they* don't know what the legal issues or consequences are, is, in my opinion, very questionable. However, for some attorneys, this may be what pays your overhead, or the kind of behavior that pleases your partners since your billable hours go way up doing this kind of thing, and the client likes the idea.

I think one always has a duty to investigate suspected infringement that comes to your attention. If you have an overzealous client who wants you to send out cease and desist letters for EVERYTHING, and skip the investigation part of it, the attorney has to balance the costs and benefits, including personal (morals) and professional (reputation, malpractice) risks.

Rose Jade
Newport, OR
<sjade[_at_]orednet.org> Received on Mon Jul 27 1998 - 15:48:46 GMT