Bar News - December 16, 2015
Morning Mail: The NH Bar Association Lawyer Referral Service Is a Source for Interesting Cases
The New Hampshire Bar Association, through the support of its members, provides many worthwhile programs to the public. One of those programs is the Bar Association’s Lawyer Referral Service (LRS). The success of this program is dependent, in large part, on the active participation of the Bar. I have been a participant in the program for many years and have encouraged all members of our firm to do the same.
The LRS program provides a valuable resource for New Hampshire citizens who seek legal representation and can be an excellent referral source for lawyers. An attorney signs up for specific areas of interest and has sole discretion over whether to represent clients referred through the program. Unlike the Reduced Fee Referral Program, clients referred by LRS are expected to pay standard fees and expenses, or standard contingent fees, as the case may be. Through LRS referrals, I have handled personal injury, medical and dental malpractice and business litigation matters, to name a few. Because of my interest in intellectual property, I also have had referrals in trademark, copyright and trade secret matters.
One of the more interesting LRS referrals in the last year involved a client, (anonymously referred to hereafter as “Dr. X”), who sought counsel, advice and representation in a pending lawsuit brought by his former employer (the “Company”), for alleged trade secret misappropriation and breach of contract.
The technology to which the Company claimed rights involved two software programs that were developed by Dr. X before he joined the Company, but which he improved during his employment. Because he first developed these programs and concepts long before becoming employed by the Company, he always believed that these programs belonged to him but that the Company got the benefit of his years of development and technical know-how. It appeared to us that the concepts and ideas embodied in these software programs could not be the subject of trade secret protection because much of them were the subjects of his writings and lectures both prior to and during his employment with the Company, and the disclosures were done with the Company’s knowledge and consent.
At the time of the referral of this case by LRS, suit had been filed, the Company sought an injunction, and the matter was scheduled for an emergency temporary hearing on the injunction request. We were able to reach a preliminary agreement on the injunction request to avoid a hearing. The next several months were spent providing information to the Company to assure them that none of their trade secrets or other allegedly proprietary information was misappropriated or compromised in any way. Based on lengthy negotiations, we were able to reach a final settlement agreement, and the court action was ultimately dismissed with prejudice.
This was a very interesting case on many levels. It was a technical challenge because it required an understanding of the software at issue. It was a legal challenge, because it involved a detailed analysis of and debate over ownership of intellectual property and existence of any trade secrets. Finally, it was a human challenge, because Dr. X was elderly, he had an exemplary career as a scientist, and being sued by his former employer (a company he held in high regard) was emotionally devastating for him. The outcome was satisfactory to both the client and the Company.
In the end, it was apparent that this was a huge misunderstanding. No rights of the Company were violated, and Dr. X reiterated his commitment to maintain any Company property in strict confidence under a permanent stipulation.
I thank the LRS for this very interesting case, which is a good example of the challenging opportunities that may lie ahead, through LRS, to those attorneys willing to participate. For more information about LRS, you can visit www.nhlrs.org or email coordinator Sheila Vermacy.
Jamie N. Hage
Hage Hodes, Manchester, NH
Editor’s Note: The NHBA Lawyer Referral Service recently launched a YouTube video about the service, which can be viewed at www.nhlrs.org. Follow LRS on Facebook at www.facebook.com/LawyerReferralService.