Trial Lawyers in Trouble: Litigation Misconduct and Its Ethics Fallout
36 Pages Posted: 1 Mar 2013
Date Written: February 27, 2013
Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity, however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. In patent cases, in particular, often much is at stake for both counsel and client. The potential outcomes range from a judgment for the patent owner, potentially including trebled lost profits, a permanently enjoined infringer and even an attorney fees award, to a ruling that the asserted patent is partly or entirely invalid, or even unenforceable, with the patent owner ordered to pay the infringement defendant’s attorney fees. And the complexity and potential intensity only increase when multiple patents and/or multiple accused products are involved. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.
Where to draw the line can be a challenging question. And the stakes are high. Courts have the power to impose a wide variety of sanctions on parties and their counsel. The lawyers involved risk injury to their reputations and even, potentially, bar discipline. Following an overview of the key sanctions regimes available to the federal courts, this paper draws on some recent IP decisions examining litigation conduct to illustrate the range of conduct with which courts must contend and the application of various sanctions frameworks. It updates and augments a previous draft (Lawyers Acting Badly, or Not? Misconduct in IP Litigation: Recent Examples and the Issues They Raise (June 29, 2010). Available at SSRN: http://ssrn.com/abstract=1632502, including by incorporating a discussion of the relationship between litigation misconduct and state and U.S. Patent and Trademark Office (“USPTO”) ethics rules, and the potential ethics fallout from litigation conduct that crosses the line.
Keywords: patent, intellectual property, sanctions, ethics, litigation misconduct
JEL Classification: K10, K29, K39, K41
Suggested Citation: Suggested Citation