Legal Malpractice Based on Client Confidentiality

/ 10.Jan, 2013
McDermott, Will & Emery is facing a legal malpractice action alleging a formal partner passed on to his family members confidential information related to a client’s patent applications.  The legal malpractice action is related to a long-standing intellectual property action between Theranos, Inc. and Fusiz Technologies, Ltd. over patents for technologies which would allow doctors to receive real-time information from small amounts of body fluids.  Theranos retained McDermott to prosecute patent applications on its behalf.  The complaint alleges former McDermott partner, John Fuisz, Esquire, gave confidential information regarding the Theranos patent applications to his father and brother who used them to secure their own patents.  Among other allegations, the complaint alleges this is not the first time John Fuisz has been accused of providing confidential client information to his father.  Not surprisingly, the complaint also alleges breach of fiduciary duty. An attorney’s duty to secure client confidences is obvious.   Pennsylvania Rule of Professional Conduct 1.6 specifically relates to the confidentiality of information, and explicitly holds a lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, with a few specific exceptions.  Although professional liability actions arising out of intellectual property are small in number, the potential damages in such cases are enormous.  Malpractice avoidance requires all attorneys involved in the prosecution of intellectual property matters need to take reasonable measures to assure the client confidences remain confidential both within and outside of the firm. -Josh J.T. Byrne, Esquire (H.T. BLT)