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The Turtle SubmarineThis case started out as an historical American submarine copyright infringement suit that should have never been brought.  Once the fuse is lite it is hard to put out.  We recently blogged about Attorney’s Fees not being covered by Attorney Malpractice Insurance.  In the Federal District court case of Leary v Manstan the Judge just awarded Attorney’s Fees to the defendant of $108,000, on March 27th, 2018.

As noted in the transcript the reason for the suit was that, “The plaintiff was “furiously pissed off” after reading the defendants’ book which he “perceived to be my book without my name”.”   According to the judge, the Plaintiff was on a vendetta to get compensation for having been “removed from the Turtle replica project”. (The Turtle was a Revolutionary War One-Man Wooden Submarine.)   The plaintiff wanted to punish the defendant using this copyright infringement lawsuit.

The judge termed the suit “objectively unreasonable”.

As to the attorney’s fees, the plaintiff has been ordered by the court to pay the defendant’s attorneys fees.  The court did not order the plaintiff attorney to pay the fees.  This silver lining might be short lived for the law firm.  The court stated that the reason for not ordering the law firm to pay attorney’s fees was they did not act in bad faith, but that plaintiff counsel’s representation was “merely incompetent”.  Likely that will not be good news for the law firm of St. Onge, Steward, Johnston & Reens. 

The transcript went on:

“Because his counsel did not act in bad faith, I cannot provide relief by, for example, ordering plaintiff’s counsel to pay the fee award.  But, as plaintiff’s counsel observed at oral argument, plaintiff may have “other avenues available” such as a malpractice claim in state court to share the financial burden for blindly leading him down this road in litigation of an objectively unreasonable claim.”

It would be interesting to see how this plays out with the law firm’s insurer.  As previously noted Attorney’s Fees are not normally considered covered damages under an Attorney Malpractice Insurance Policy.  Sadly this entire award of Attorney’s Fees could have been avoided by not taking the client on in the 1st place.  Client selection can be your first defense in a malpractice claim.

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