At What Point Does Silence Become Malpractice?

[WSJ_law_blog]

Suppose you’re working on a client matter and you mess something up — say, miss a filing date. How long can you wait before you must tell the client about it?

According to this story, from the Recorder, that’s the issue bubbling to the surface of a suit filed by Landmark Screens against its patent lawyer, Morgan, Lewis & Bockius partner Thomas Kohler. Landmark Screens — whose picture-changing billboard can be seen on Highway 101 near San Carlos, Calif. — filed a malpractice suit against Kohler accusing Kohler of messing up a patent application. Here’s the complaint.

While at Pennie & Edmonds, Kohler allegedly filed a patent application for the electronic billboard in 2002. After dropping some claims, he reportedly refiled them as part of a follow-on application known as a “divisional application.” The suit claims the divisional applications contained errors, that the patent office sent it back in June 2004, and that it then rejected the patent lawyer’s petition for appeal that November. Kohler and Morgan Lewis found out the petition had been denied in early December 2004, but, according to Landmark’s complaint, didn’t tell the client it had lost the patent rights until March 2005.

Clark Stone, a lawyer from MacPherson Kwok Chen & Heid who’s representing Landmark, said damages could be in the millions. “If the company would’ve known about the error shortly after the error occurred, they could’ve gotten other counsel and taken other steps to remedy the situation,” said Stone.
According to the story, neither Kohler nor Keker & Van Nest partner Elliot Peters, who is representing Morgan Lewis and Kohler, could be reached for comment. A Morgan Lewis spokeswoman said the firm had no comment.

Diane Karpman, a legal ethics expert, told The Recorder that not keeping a client informed can be a serious accusation. But she said lawyers do have an undefined period of time to try to fix the problem before they have to come clean. “There’s a period known as repair,” Karpman said. “Once it can’t be repaired you have a duty to go to the client.”