Counsel Concerns

The New York Appellate Division, Third Department, upheld the dismissal of legal malpractice claims arising out of transactional and defense work on the Aimster file-sharing software. But the court allowed former Aimster principal John Deep to proceed with a claim of misappropriation of the software against the lawyers who had represented him, including notable intellectual-property attorney David Boies. Deep v. Boies, 53 A.D.3d 948 (2008). A federal district court had issued an injunction against Aimster. In the malpractice suit, the state appeals court noted: “Plaintiff [Deep] alleged that an injunction could have been avoided or limited if [the malpractice] defendants had argued that the file sharing service had noninfringing uses, and that defendants did not make this argument due to conflicts of interest. Contrary to plaintiff's contentions, the record shows that defendants did make the proffered argument to the federal court ' although not in the clearest of terms ' and, in any event, the argument would not have prevented the issuance of the preliminary injunction. The evidence showed that [Deep's] corporation had contracted with another company ' also represented by [malpractice] defendants on other matters ' to develop Aimster technology for noninfringing uses, but that company was not actually using the technology and did not follow through with the development of such uses.”