As the reader of our blogs may have discerned, we generally are not sympathetic to attorneys who commit malpractice. We are equally unsympathetic to disgruntled clients who bring frivolous malpractice suits against their former attorneys. A recent case, however, involves a pathetic defense to what may well be a weak claim. A pox on both of their houses. (JS Products Inc. v. Standley Law Group et al.)
JSP retained the Standley Law Group to conduct a product clearance with respect to certain flashlights they proposed to produce. Three attorneys at the firm either performed or commissioned a patent search and prepared an opinion letter setting forth their findings and conclusions. About a year later, one of the attorneys prepared a further opinion. Apparently, the two opinions cleared the products, which JSP proceeded to market.
Shortly thereafter, MAG Industries, a competitor of JSP, filed suit alleging that the subject JSP flashlights infringed three MAG patents – one utility patent and two design patents. The utility patent had been identified and discussed in the second opinion letter. Neither of the design patents was identified nor discussed in either of the opinion letters. Both had been issued in the interval between the two opinion letters.
JSP settled the infringement suit, then turned around and sued the Standley Law Group, but not the individual attorneys. The complaint filed by JSP offers no suggestion as to the exact negligence or error allegedly committed by the Standley attorneys.
Rather than defend the actions of its attorneys, the Law Group moved to dismiss the action on the grounds that, under applicable state law, a malpractice action can only be brought against individual attorneys; it cannot be brought against a law firm. The Law Group went on to point out that it was too late for JSP to sue the individual attorneys as the applicable statute of limitations had expired.
Due to the settlement of the case, the merits of MAG’s claims were never determined in court. We, therefore, consider this action by JSP to be open to question. While the Law Group’s motion is “good lawyering,” it leaves the malpractice issue unresolved and, in our opinion, is therefore distasteful.
Perhaps JSP can sue the attorneys, who brought the malpractice action, for malpractice.
THE LESSON TO BE LEARNED: EVERY lawyer needs malpractice insurance.