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Facing a negligence suit by an ex-client, Coudert Brothers is trying to deflect blame to the next place the client took its business — Duane Morris. Before the negligence claims have been decided, Coudert is trying to persuade a superior court judge to order Duane Morris or former partner Edward Lynch to pay up if Coudert loses or settles SenoRx’s suit. That strategy, of course, hasn’t sat well with Duane Morris. Following a hearing late last week, San Francisco Superior Court Judge James Warren is now weighing the firm’s request to throw out Coudert’s indemnity suit. The conflict began about a year ago, when SenoRx, an Aliso Viejo, Calif.-maker of medical devices, sued Coudert, alleging the firm missed some patent-filing deadlines that cost it money. Coudert has since deflected blame to Lynch, who left for Duane Morris in 2003 and took SenoRx with him. In its cross-complaint filed in August, Coudert accused Lynch of failing “to timely and properly manage his prosecution docket,” and claimed that Duane Morris could have mitigated some of the damage. Michael Piuze, who represents SenoRx, said Coudert was supposed to obtain patents for a set of medical devices for treating breast cancer in the United States — which it did — and in Western Europe, Canada and Japan — which it didn’t. “When a law firm blames one of its own partners, it’s blaming itself,” and some of the responsibility was probably delegated to other employees there, he said. However, Piuze said, Coudert claims that there was still time to fix some of the damage done with the Japanese patent when Duane Morris took over the client. “There is an intramural dispute there as to whether some [of that damage] could have been remedied on Duane Morris’ watch,” Piuze said, adding that SenoRx is watching those arguments unfold. In weighing who should pay for any blown deadlines, both sides are dueling over how to label the relationship between Duane Morris and SenoRx. Under California case law, the rule of thumb is that a lawyer can’t sue “successor counsel” for indemnity, said Mark Tuft, a Cooper, White & Cooper partner who represents lawyers and law firms but is not involved in this case. But there have been occasional cases that have made “inroads” against that general rule, he added. “Creative lawyers will try to find some way of creating a limited exception,” Tuft said. Lawyers for Duane Morris argue that Coudert is improperly trying to shift the responsibility for its alleged negligence. Though a party that messes up something first can often sue someone else who exacerbates the damage, that’s not allowed in a cross-complaint against a “successor attorney”, lawyers from Sedgwick, Detert, Moran & Arnold argue in a brief on behalf of Duane Morris and Lynch. The pressures of such cross-complaints put a client’s new lawyers in a tenuous position, they argue, because the pressure to defend themselves can conflict with their role as counsel for the client. Coudert argues that Lynch and his new firm shouldn’t be considered successor attorneys. “Before, at the time of and after each malfeasance alleged Lynch was, and has continued to be, the individual attorney authorized by SenoRx to act in its behalf in patent matters,” argued Brian Drazich, a lawyer in Coudert’s L.A. office, in a brief. “The mere fact that one concurrent counsel (Coudert) did not continue a lawyer-client relationship with SenoRx did not render the remaining counsel (Lynch) ‘new’ or a ‘successor.’” Duane Morris general counsel Michael Silverman said his firm doesn’t comment on ongoing litigation, and a Sedgwick lawyer representing Lynch and Duane Morris likewise declined to comment. Neither Lynch nor lawyers with Coudert returned a call seeking comment Tuesday. While Coudert works to shift or share the blame, SenoRx attorney Piuze still emphasizes the initial error. “But for Coudert’s failure to get this stuff done when they were supposed to, no one would have to worry about which shift of the cleanup crew was responsible for getting it back on track,” he said.

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