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I just came off of an initial consultation with a patent lawyer about a utility patent application. After the one hour consultation, he stated that he currently does not have the bandwidth to take on my case.

I don't believe that's the real reason. If so, why even accept my consultation request?

Questions:

  1. If he did in fact accept my 1-hour consultation already knowing that he won't be able to accept my case because he currently has too much work/business from others, would there be an element of malpractice here? I mean, I paid for it with significant money and revealed to him my invention idea.
  2. If that is not his real reason for not taking on the case, then what could be some real world reasons that would case most patent lawyers to reject a case? For example, if they believe that there is a low probably of success, would that be enough to reject the case, etc?
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    Even if there was an objective answer, that still would be a business matter and not a legal matter.
    – MSalters
    Commented Apr 8 at 9:09
  • If it really was the bandwith, it could be that only after the consultation he recognized how much work it would be. Patent application sounds like quite a standard process, but maybe in your case it's not?
    – PMF
    Commented Apr 8 at 14:52
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    Its possible that he didn't want to risk getting into an argument with you about the likely viability of your invention, so he chose a polite brush-off instead. Commented Apr 8 at 15:02
  • Did you get any useful questions at the meeting? For example, anything that might help clarify what is and isn’t an invention? Commented Apr 9 at 15:32

2 Answers 2

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Factors to consider when deciding whether to accept a matter:

  • competence
  • whether the matter is within one's area of practice
  • conflicts of interest
  • capacity
  • client's ability to pay, general demeanor, and receptiveness to advice
  • public importance

Very few lawyers consider likelihood of "success" (being "winning" a case, or getting a patent issued) a factor. Many lawyers consider success to be providing good legal advice, advising the client of the risks, and helping the client choose a prudent path given the client's goals and constraints.

However, in certain practice areas like class-actions which largely depend on contingency fees, likelihood of success does become a factor because it replaces the client's ability to pay.

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    "Very few lawyers consider likelihood of "success" (being "winning" a case, or getting a patent issued) a factor." I would disagree on this nuance. I probably turn away three clients a week because my representation would not leave them economically better off than me not representing them and do a long and clear CYA letter in cases where I'm proceeding anyway. If a patent doesn't work out and is likely to not prevail, your fees leave the client worse off without adding value. Sometimes you can add value by mitigating a loss, other times you do harm even if you win since your fees>value added.
    – ohwilleke
    Commented Apr 8 at 19:17
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    I agree with all of that. I have said it perhaps too simply, but I was thinking of that idea as encompassing the initial advice advice about the low likelihood of success and helping them understand cost-benefit analysis, so that if they do decide to proceed, they're doing so fully informed, possibly with some other view of "value" than a mere economic assessment. Of course also avoiding presenting vexatious or meritless issues to a court.
    – Jen
    Commented Apr 8 at 19:28
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Potential Malpractice: Accepting a consultation knowing that the lawyer doesn't have the capacity to take on the case could raise ethical concerns, but whether it constitutes malpractice would depend on various factors, including the specific circumstances and applicable laws or regulations.

Reasons for Rejection: There are several reasons why a patent lawyer might decline to take on a case, even after an initial consultation:

a. Bandwidth Constraints: This could indeed be a genuine reason, as lawyers often have limited capacity due to their existing workload or other commitments.

b. Low Probability of Success: If the lawyer believes that the invention lacks novelty, is not patentable, or faces significant legal hurdles, they may decline to take on the case to avoid wasting your time and resources on a potentially unsuccessful venture.

c. Conflicts of Interest: The lawyer may have conflicts of interest that prevent them from representing you, such as representing another client with conflicting interests.

d. Expertise or Experience: If the lawyer doesn't have the necessary expertise or experience in the specific technical field or legal issues involved in your case, they may refer you to another lawyer who is better suited to handle it.

e. Client Compatibility: Sometimes, lawyers may decline cases if they feel there isn't a good fit between the client and the lawyer, such as differences in communication styles, expectations, or personalities.

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  • This seems like a good list of issues but none are close to addressing malpractice, in my opinion. Commented Apr 9 at 15:34

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