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Why blame lawyers for the instructions and aims of their clients in engaging in litigation? It is up to the courts to judge the legitimacy of a claim on its me

by grabeh 14y ago

Why blame lawyers for the instructions and aims of their clients in engaging in litigation? It is up to the courts to judge the legitimacy of a claim on its merits, not bar associations to determine that someone is unfit to practice purely on the basis that they represent a client with an apparently legitimate claim.

shawn-butler 14y ago
Because lawyers are allegedly trained, ethical professionals that are granted a unique license in every jurisdiction to exclude nonprofessionals? A nearly universal aspect of most bar associations (ABA, state, local) is a statement of professional conduct requiring members provide competent representation. Are you saying that these NPE patent portfolio trolls have legitimate claims and that nearly everyone else is wrong or are you saying that patent/IP lawyers lack the competency to recognize patents that are junk prima facia and advise accordingly? In case you are not following recent events, most of the activity of NPE trolls happens outside the courts because the attorneys involved know full well their paper is worthless inside. So they target precisely those firms who cannot afford protracted legal proceedings and avoid those that can. This is not professional conduct and if it is, the profession has the wrong name. Their clients will not sue for malpractice because they are benefitting. Judicial sanctions are not an option for activity that occurs outside of any proceeding. Where is the control and check on such clearly unprofessional behavior, the only defense for which is that it generates income, if not the body responsible for policing its own conduct?
- rayiner 14y ago
  The standard for claims is that they must have some basis in law and fact or on some non-trivial argument for changing the law. Most troll claims are well inside that boundary, given duly issued patents and non-spurious allegations of technical infringement. Just because you think the troll claims are clearly invalid under existing law does not make them so. The law is arguably far too broad, but if there is a duly issued patent, thats all the "basis" in the law that is necessary. If that results in a lot of what you consider trivial cases, the fault is the law.
  - shawn-butler 14y ago
    Let's say I have a patent for rotating the image displayed on a homepage [0]. You are trying with a straight face to tell us that there is any valid belief that this is an enforceable patent other than the incomprehensible fact that it was granted? And further, if you do provide competent representation and advise me that this patent is basically null if it gets challenged, present me with the obvious prior art, etc then you believe (again with a straight face) that it is ethical behavior to, on my behalf, threaten another party unless payment is made with legal action representing what you know to be false to that party and more importantly having no legal basis for a positive outcome in any legal proceeding? There is always room for improving statutes as no crafted law is a perfect instrument. It is clear to everyone by now that the simple existence of a duly issued patent should not be considered on its own as a valid basis for litigation. And, for the most part abuses are taking place outside of judicial purview or being forum shopped to certain favorable jurisdictions. I take issue with the ethical lapses having no consequence, and am advocating for self-correcting behavior by the very body that has that task. [0] http://1.usa.gov/dR6UBy http://1.usa.gov/dR6UBy

by grabeh 14y ago

shawn-butler 14y ago

Because lawyers are allegedly trained, ethical professionals that are granted a unique license in every jurisdiction to exclude nonprofessionals? A nearly universal aspect of most bar associations (ABA, state, local) is a statement of professional conduct requiring members provide competent representation. Are you saying that these NPE patent portfolio trolls have legitimate claims and that nearly everyone else is wrong or are you saying that patent/IP lawyers lack the competency to recognize patents that are junk prima facia and advise accordingly? In case you are not following recent events, most of the activity of NPE trolls happens outside the courts because the attorneys involved know full well their paper is worthless inside. So they target precisely those firms who cannot afford protracted legal proceedings and avoid those that can. This is not professional conduct and if it is, the profession has the wrong name. Their clients will not sue for malpractice because they are benefitting. Judicial sanctions are not an option for activity that occurs outside of any proceeding. Where is the control and check on such clearly unprofessional behavior, the only defense for which is that it generates income, if not the body responsible for policing its own conduct?

rayiner 14y ago
The standard for claims is that they must have some basis in law and fact or on some non-trivial argument for changing the law. Most troll claims are well inside that boundary, given duly issued patents and non-spurious allegations of technical infringement. Just because you think the troll claims are clearly invalid under existing law does not make them so. The law is arguably far too broad, but if there is a duly issued patent, thats all the "basis" in the law that is necessary. If that results in a lot of what you consider trivial cases, the fault is the law.
- shawn-butler 14y ago
  Let's say I have a patent for rotating the image displayed on a homepage [0]. You are trying with a straight face to tell us that there is any valid belief that this is an enforceable patent other than the incomprehensible fact that it was granted? And further, if you do provide competent representation and advise me that this patent is basically null if it gets challenged, present me with the obvious prior art, etc then you believe (again with a straight face) that it is ethical behavior to, on my behalf, threaten another party unless payment is made with legal action representing what you know to be false to that party and more importantly having no legal basis for a positive outcome in any legal proceeding? There is always room for improving statutes as no crafted law is a perfect instrument. It is clear to everyone by now that the simple existence of a duly issued patent should not be considered on its own as a valid basis for litigation. And, for the most part abuses are taking place outside of judicial purview or being forum shopped to certain favorable jurisdictions. I take issue with the ethical lapses having no consequence, and am advocating for self-correcting behavior by the very body that has that task. [0] http://1.usa.gov/dR6UBy http://1.usa.gov/dR6UBy