wouldn’t do it?
A: I’m not going to pursue a case I’m uncomfortable with. I’d fire
a client who insisted on an enforcement where I don’t think it’s
right.
Q: Have you ever done that? How many clients have you fired for
that?
A: I’m not thinking of any right now.114
This last theme arose strikingly in four of the interviews. In these
four interviews, the lawyers each made some statement about how
they would “fire” a client who asked them to enforce an IP claim
where the lawyer believed the claim was without merit. When probed
as to whether they had ever had a client who asked them to enforce a
claim the lawyer had explained was weak or non-meritorious, these
lawyers stated that they had. When asked about the specific instances,
all four lawyers indicated that they followed the clients’ instructions
to enforce the claims. None of these lawyers could identify an
instance where they had actually “fired” a client under such
circumstances. At one level, this is perhaps not surprising. Perhaps
the lawyers were pontificating and speaking in generalities when
discussing their attitudes and what they “would” do under such
circumstances. But when focusing on what they actually did in a
particular case, the story became more complicated. Nevertheless,
these four lawyers, and most of the rest of the interviewed lawyers,
had little difficulty justifying using aggressive enforcement tactics in
particular cases. They justified such tactics in three main ways: the
need to “police” IP, the need to protect IP as “property,” and the duty
to represent client interests zealously.
1. Policing IP
The interviewed lawyers often cited a need to “police” their
clients’ trademarks and copyrights. They explained that the failure to
do so on any particular occasion could lead to difficulties in enforcing
rights against other targets in the future. These lawyers most often
used this justification when referring specifically to trademark
examples, and there is a body of law that suggests trademark rights
can be diminished or lost due to the owner’s failure to police third
party uses of the mark (although it is far from clear what level of