Problems Caused by the Attorney/Client Relationship

The attorney/client relationship is one of the most sacred and important tenants of the US legal system, but it causes weird side effects.

The attorney/client relationships HURTS startup companies when it comes to patents.

The attorney/client relationship can be a problem, especially in areas of business. Because of the ultra-high importance of this relationship, the attorney is held to an ultra-high standard for whatever the attorney tells the client. If the attorney gives bad advice, the attorney can be sued for malpractice.

The result of the attorney/client relationship: the attorney is personally liable for any advice.

How is this a problem?

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.

The client, of course, came to the patent attorney for advice, since the patent attorney knew the ins and outs (presumably) of the patent system and therefore would help the client navigate the system. In the exact opposite result, the attorney would patiently and slowly go over all of the options (while on the billable hour), and force *the client* to figure out what was best.

Think of a hypothetical case where a client comes to a patent attorney with an invention that the attorney thinks may have little commercial value. The attorney tells this to the client, and the client decides to forget about the invention. Several years later, the product shows up at Walmart and is selling like hotcakes. Of course, the inventor sues the attorney for giving him bad advice.

Because of this type of hypothetical, patent attorneys avoid giving meaningful advice to inventors.

When I act as someone’s patent attorney, for example, I never perform patent searches myself. This is because of my liability exposure. Instead, I hire out the patent search to a professional searcher. I cannot afford to be liable for a search that missed a reference that killed an invention.

BlueIron does not have an attorney/client relationship with its clients. Why not? In part, it allows us to share our real opinions and advice with clients. Since we have a vested interest in your success, we have to give our honest opinions about the possible success or failure of your venture. We can do the searches ourselves and share the results with you. We can give you good advice for the best way to position the invention for licensing or sale, and we can help you craft the invention to maximize its commercial value. No patent attorney would risk their license to offer that level of advice to you, while you can get all of it from BlueIron.

The attorney/client relationship is the primary reason why the patent system is broken, but not in the way you think it is.