Microsoft Lawyers Disqualified for Violations of Ethics Rules

This blog is beginning to morph into a Microsoft patent litigation blog. I apologize for that, but there is just too much to talk about when it comes to Microsoft and patent law. The latest news comes from the District of Delaware, where the Redmond-based software behemoth finds itself in an unusual role: patent infringement plaintiff. The Microsoft-owned patents-in-suit are 6421439, 6430289, 6263064, 6728357. The '439 patent is entitled "System and Method for User Affiliation in a Telephone Network." In the most basic summary, this technology combines telephone and internet technology to establish user lists for use in making rules for managing incoming phone calls, enhancing caller ID functions. I heard about this case from the very good Delaware IP Law Blog, where co-author, Chad Stover, reports about a recent Order granting Alcatel-Lucent's motion in part to sanction and disqualify certain Microsoft lawyers for violating state ethics rules relating to professional conduct. According to the Order, these lawyers purchased, on the open market, an Alcatel Communications System that contained certain features at issue in the patent litigation. The system was installed at the attorneys’ Washington D.C. offices, and one of the technicians working on the installation identified himself as an employee of Alcatel-Lucent, one of the originally-named defendants in the case. The employee helped install the system, trained the attorneys on how to use the system, and engaged in ongoing conversations with the attorneys about the administration, use, and configuration of the system. The Court noted that the employee was one of only a limited number of engineers at Alcatel with the experience and training to install the system. The Order concludes that this conduct violated Rule 4.2 which prohibits direct attorney communication with a party represented by counsel. The court finds that "[i]n the case of a corporation such as Alcatel, an employee is "represented" if, for example, his or her statement may bind the organization regarding the subject of the litigation, or where the employee is capable of making an admission on behalf of the corporation."

As a sanction, the Court ordered that the specific attorneys involved could not be involved in the litigation, and that the evidence gathered could not be used in the case, including the expert testimony from Microsoft's expert, because he apparently relied on the "fruits of [the lawyer's] conduct." The order is attached below.


MicrosoftRule4FRDQ.pdf