Attorney, Just Do Your Job
Why won’t your patent attorney make a decision without your permission?
Your patent attorney is a skilled professional. They spent years learning patent law. They passed the patent bar. They have written hundreds of applications and prosecuted thousands of office actions.
And they will not make a decision without your permission.
Every office action response. Every continuation decision. Every claim amendment. Every maintenance fee. Presented to you — the person who hired them specifically because you do not have their expertise — as a list of options with a deadline.
You came for professional judgment. You got a menu.
You have experienced this in no other professional relationship. Your accountant does not send you three tax strategies and ask you to pick. Your surgeon does not present four incision approaches and wait for your email. Your general contractor does not call you every time they need to decide whether to use a 2×6 or a 2×8.
Skilled professionals exercise judgment. That is the service you are buying.
So why does your patent attorney refuse to exercise theirs?
The Excuse: “Ethics Require It”
The standard explanation is that the rules of professional conduct require the attorney to obtain your informed consent before making material decisions.
That explanation is incomplete — and the way it is applied in practice is not what the rules actually say.
Here is what the rules actually say.
ABA Model Rule 1.2(a) divides authority between client and attorney. The client controls the objectives of the representation — whether to file, whether to abandon, the overall goals. The attorney controls the means — how to accomplish those objectives. The rule states explicitly that the attorney “may take such action on behalf of the client as is impliedly authorized to carry out the representation.”
The Comment to Rule 1.2 goes further: “Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.”
Read that again. The rules expect clients to defer to the attorney’s skill on technical and tactical matters. The rules contemplate the attorney exercising professional judgment — not presenting twelve options and waiting for the client to guess.
ABA Model Rule 1.4 requires the attorney to keep the client “reasonably informed” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions.” The key words are “reasonably” and “to the extent reasonably necessary.” The rule requires adequate communication — not the review-and-approve machine that routes every prosecution decision through a client who cannot evaluate it.
37 CFR 11.102 and 11.104 — the USPTO’s own rules for patent practitioners — mirror the ABA rules almost verbatim. The attorney controls means. The client controls objectives. The attorney has implied authority to act.
The rules draw a clear line:
- The client decides whether to pursue patent protection, whether to abandon an application, and how much to spend. These are objectives.
- The attorney decides how to structure a claim amendment, how to argue a rejection, whether to request an examiner interview, what language to use in a response. These are means — technical, legal, and tactical matters where the rules expect the attorney to exercise professional judgment.
An attorney retained to prosecute a patent application is impliedly authorized to respond to office actions, amend claims within reasonable bounds, request examiner interviews, file information disclosure statements, and handle procedural matters. The rules do not require the attorney to obtain your sign-off on every action. The rules require the attorney to keep you informed and to let you control the objectives.
That is not what is happening.
What Is Actually Happening
What most patent attorneys do — the options memo, the review-and-approve cycle, the “please advise how you would like to proceed” email — goes far beyond what the ethics rules require.
The rules say: exercise professional judgment on tactical matters, consult the client on means, and let the client control objectives.
The practice says: present every option, document the client’s choice, and create a paper trail that proves the client decided.
The gap between those two things is not ethics. It is fear.
The Walking Malpractice Suit
Inside patent law, small inventors and startup CEOs have a specific name: “walking malpractice suits.“
As a young patent agent, the senior partner at my first firm drilled this into every associate. Under no circumstances would the managing attorney give advice. He would present all the options and make the client decide.[^1] This was not a suggestion. It was a survival rule.
The malpractice math makes it rational. If an attorney recommends filing and the patent turns out to be worthless, the exposure is the cost of a patent — maybe $30,000. If an attorney recommends against filing and the invention later proves valuable, the exposure is all the client’s lost profits, in every country, for twenty years. The exposure could reach into the billions.
The rational response is to never recommend anything. Present options. Let the client choose. Document the choice.
This is the overwhelming motivator. Not ethics. Not professionalism. Not a commitment to keeping the client informed. Fear of the walking malpractice suit.
Every options memo, every “please advise how you would like to proceed” email, every review-and-approve cycle is a defensive artifact of that fear. The attorney is not seeking your informed consent because the rules require it for every tactical decision. The attorney is creating a paper trail that documents your approval of every decision so that when the patent fails, the attorney can point to the file and say: “The client decided.”
The Trust Breakdown
But there is something deeper happening — something the malpractice math alone does not explain.
Every time an attorney sends you an options memo instead of a recommendation, they are signaling something about the relationship. They are telling you: I do not trust you enough to give you my professional opinion. And they are telling you: I do not believe you trust me enough to accept it.
The options menu is not a communication tool. It is evidence of a fundamental breakdown in trust — in both directions.
Trust is earned. Competency is earned. A surgeon earns the right to make incision decisions through years of training, residency, board certification, and a track record of outcomes. When a surgeon says “this is what I recommend,” the patient trusts the recommendation because the surgeon has earned it.
Patent attorneys have the same training. They passed the patent bar. They have prosecution experience. They have technical expertise. They have every credential necessary to earn the client’s trust.
And yet they will not exercise the judgment those credentials represent.
Here is the untold truth: the options menu does not just signal that the attorney does not trust the client. It signals that the attorney does not trust themselves.
An attorney who is confident in their judgment makes a recommendation. An attorney who is not confident presents a menu and lets someone else decide. The menu is not a service. It is a hedge — a way to avoid owning the outcome of a decision the attorney is not sure they can make correctly.
The decade-long feedback loop makes this worse. A patent gets filed but does not get examined for years. The attorney never learns whether their claim strategy worked, whether their amendments destroyed commercial value, whether their continuation decisions served the business. A feedback loop that long does not build confidence. It builds habits — and the habit is to present options and let someone else bear the risk.
The incompetence is not in the legal mechanics. Most patent attorneys are technically proficient at drafting and prosecution. The incompetence is in the business judgment — knowing whether this patent serves a commercial purpose, whether these claims will change competitor behavior, whether this continuation is worth the investment. The attorney does not have that judgment. They know they do not have it. And instead of saying so, they present a menu of options and let the client — who also does not have that judgment — make the call.
Both sides are guessing. The menu just makes it look like a process.
The judgmental immunity doctrine actually protects attorneys who make informed, strategic decisions between reasonable alternatives.[^2] Courts have not held attorneys liable for making reasonable tactical prosecution decisions without explicit client sign-off. Where attorneys have been disciplined, it was for abandoning applications without the client’s knowledge — not for exercising professional judgment on how to respond to an office action.
The rules give attorneys substantial autonomy. The rules expect attorneys to use it. And the vast majority of patent attorneys choose not to — not because the rules prohibit it, not because the client would object, but because the attorney does not trust their own ability to make the business judgment that the decision requires.
What This Looks Like From Your Side
You hired an expert. You are paying $400 to $600 an hour. And the expert keeps asking you to make the decisions.
Every few weeks, an email arrives. An office action needs a response. The attorney presents three options — amend, argue, or continue. Each has trade-offs the attorney explains in language designed for legal precision, not client comprehension. At the bottom: “Please advise how you would like to proceed.”
You do not know how you would like to proceed. That is why you hired an attorney.
But the attorney will not tell you what to do. They will present options. Neutrally. With a deadline. And the decision lands on your desk — the desk of a CEO who does not have a framework for evaluating claim scope trade-offs and who is currently managing sixteen other priorities that arrived this morning.
So you delay. Or you guess. Or you approve whatever the attorney seems to be hinting at. The attorney documents your choice. The response gets filed. And you wonder whether you just made a $50,000 mistake.
This is not a client failure. This is an abdication by the professional you hired to exercise the very judgment that justifies their fee.
The Micromanagement Trap
Some CEOs respond to this abdication by seizing control — reading office actions, learning prosecution vocabulary, making the tactical decisions the attorney will not make. The attorney is happy to oblige. The client bears the risk. The attorney executes and bills.
This feels like leadership. It is not. It is micromanagement born from frustration — and it destroys the relationship from both sides. The CEO signals that the attorney’s judgment is not trusted. The attorney responds by exercising even less judgment. The cycle tightens until neither side is leading. The full dynamic — including the psychology research on what actually drives micromanagement and why the CEO’s fear mirrors the attorney’s — is explored in Micromanaging Your Patent Attorney Destroys the Relationship.
What “Just Do Your Job” Actually Means
You are not asking your attorney to be reckless. You are not asking them to ignore you. You are asking them to do what every other skilled professional does: exercise judgment within a defined scope.
When you hire a contractor to build a room, you tell them the purpose of the room. They make the engineering decisions. They do not call you every time they need to choose a fastener.
When you hire an accountant, you tell them your financial goals. They structure the returns. They do not present eight tax strategies and ask you to pick.
When you hire a patent attorney, you should be able to tell them: here is the business objective, here are the competitors to target, here is the budget. And the attorney should exercise professional judgment on how to accomplish that objective — claim structure, argument strategy, amendment approach, continuation decisions — without routing every tactical choice through a client who cannot evaluate it.
The ethics rules not only permit this. They contemplate it. The comment to Rule 1.2 says clients “normally defer” to the attorney’s skill on technical and tactical matters. The rules give attorneys implied authority to act within the scope of the representation.
The attorney just has to use it.
Why They Will Not — And What to Do About It
The malpractice asymmetry is real. The fear is rational. No amount of arguing about what the ethics rules permit will change the structural incentive to transfer decisions to the client.
You are not going to fix this by asking your attorney to be braver. The system will not change because one client demands it.
But you can change the relationship.
Give the attorney a playbook. A prosecution playbook — claim strategy, competitive targets, continuation criteria, response protocols, budget guardrails — gives the attorney what they actually need: clear objectives and the authority to execute within them. The playbook defines the scope. The attorney exercises judgment within it. No more options memos. No more “please advise.”
Define decision rights explicitly. The attorney handles tactical prosecution decisions within the playbook. Strategic changes — abandonment, new continuation families, terminal disclaimers, significant budget changes — get escalated. Everything else, the attorney executes.
Give standing instructions. Restriction requirements? Elect the broadest group. Examiner interview requested? Accept and prepare. Non-final rejection on prior art? Amend within defined claim lanes. Final rejection? Assess continuation value against criteria. These are the rules. The attorney follows them. When something falls outside the rules, they escalate. Otherwise, they proceed.
Evaluate on outcomes, not activity. The attorney’s performance is measured on claim quality, cycle time, consistency with strategy, and budget discipline — not on how many options memos they produced.
This is not revolutionary. This is how Fortune 100 companies manage patent prosecution. The in-house IP team sets the strategy. Outside counsel executes within it. The attorney does patent work instead of client management. The cost drops. The quality rises. The patents get prosecuted with purpose.
The difference is that Fortune 100 companies have someone who can write the playbook and enforce the standards. You need that function too. Whether it is an internal hire, a fractional Chief IP Officer, or a CEO who develops the competence — someone has to stand in the gap between the business strategy and the legal execution and give the attorney what the rules already say they should have: clear direction and the authority to do their job.
The Standard of Care Does Not Protect You
Here is the part that should make you angry.
The legal standard of care for patent attorneys requires only that a patent be obtained — not that it be useful.[^3] The malpractice standard asks whether the attorney exercised the competence and diligence normally exercised by lawyers in similar circumstances. In patent prosecution, that means: did the attorney obtain the patent? Did they meet deadlines? Did they comply with USPTO rules?
The standard does not ask: did the claims target the right competitor? Are they detectable? Can they be enforced? Will they change anyone’s behavior?
So the attorney’s defensive documentation — the options memos, the review-and-approve cycle, the client sign-offs — serves a specific purpose: protection against claims of procedural malpractice. Did we meet the deadline? Yes. Did the client approve the response? Yes. Did we inform the client of the options? Yes.
Whether the patent has commercial value is a different question entirely. One the approval process does not address.
The attorney documents your approval to protect themselves from procedural claims. You need someone to ensure the patent has strategic value. These are different jobs, performed by different people, with different incentives.
Your signature on the draft does not mean the patent is good. It means the attorney is protected.
The Attorney Wants This Too
Here is the part that surprises most clients.
Your attorney hates the options-memo model as much as you do.
They do not enjoy drafting three response options when they know which one is correct but cannot say so without creating liability. They do not enjoy explaining restriction requirements for the fourth time. They do not enjoy chasing approvals from clients who do not understand prosecution.
What patent attorneys want is what any skilled professional wants: clear instructions and the authority to execute.[^4]
An attorney with a playbook — one that defines the claim strategy, the competitive targets, the continuation plan, and the budget parameters — can do the work they were trained to do. Responses are faster. Claim amendments preserve commercial value. Continuations are filed with purpose. The attorney spends time on patent work instead of client management.
The attorney becomes what they should have been all along: a skilled professional exercising skilled judgment within a defined scope.
That is all “just do your job” means. Not recklessness. Not autonomy without accountability. Professional judgment, exercised by a professional, within a framework that connects the legal work to the business purpose.
The rules permit it. The attorney wants it. The client needs it.
The only thing missing is the framework.
[^1]: “As a young patent agent, I was taught that independent inventors are ‘walking malpractice suits.’ Under no circumstances would the managing attorney give advice. He would present all the options to the client and make the client decide.” — “Problems Caused by the Attorney/Client Relationship,” BlueIron IP. See also Understanding Your Law Firm and The Role Nobody Fills in Investing in Patents.
[^2]: Seed Co. v. Westerman, D.C. Circuit, 2016. The judgmental immunity doctrine protects attorneys who make informed, strategic decisions between reasonable alternatives, provided the decision has a plausible basis. See also the Restatement (Third) of the Law Governing Lawyers, § 50 (duty of care), § 52 (standard of care).
[^3]: The gap between the standard of care (obtain a patent) and the standard of value (obtain a patent that changes competitor behavior) is the central problem in patent management. See Your Patent Attorney Makes More Money When the Patent Application Is Bad.
[^4]: The attorney’s perspective on the options-memo model — and what they actually need from the client — is explored in The URGENT Email From Your Patent Attorney and Duty-Shifting Disguised as Diligence. The micromanagement dynamic — where the CEO seizes control in response to the attorney’s abdication — is explored in Micromanaging Your Patent Attorney Destroys the Relationship.