Of proof and professional duty: a thought

A recent post by this blogger on the PatLit patent litigation blog touched on two delicate topics: one is professional negligence, the other the extent to which a patent attorney who is accused of professional negligence can secure the documentary evidence that reflects on such relevant issues as (i) the precise scope of his professional duties, (ii) whether he has fulfilled those duties to the requisite standard or as failed to do so and (iii) whether his former client's loss is the result of any breach of those duties or is caused by some other factor.

In an ideal world, the terms on which any professional representative acts for a client will be contained in a document in which those terms are clearly stated, easy to comprehend, spelled out to the client and happily agreed. But we do not live in an ideal world. Even if such a document is drafted and the terms of engagement are as described in the previous sentence, the relationship of client to professional representative does not always remain static: as work progresses and the file grows fatter, the professional may find that he is, at different times, a technician, an amanuensis, a business adviser, a financial consultant, a marketing guru, a maker of vital personal connections with others, a confidante and a nanny too. Any original terms of engagement may well have been long overtaken by events -- with the result that the real relationship between client and professional representative may only be truly capable of being extracted from a myriad of emails, memos of meetings and other materials that are tedious to gain disclosure for and even more tedious to wade through.

Is there an easier solution, or an ideal one?