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boies.jpgIn Deep v. Boies , John Deep creator of an Internet file-sharing service known as "Aimster," was involved in a number of copyright and trademark disputes. In one, America Online sued Aimster for violating its "AIM," or Instant Messenger, trademark and a Federal District Court issued an injunction finding Aimster was "primarily used to facilitate copyright infringement."

Three years later, Deep sued his lawyer, David Boies , [pictured right], for malpractice claiming the latter's nondisclosure of certain "conflicts of interest" led to the "unfavorable outcomes" and the lawyer had "misappropriated [Deep's] file sharing software."

Notwithstanding the allegations that  Boise 's representation was "fraught with undisclosed conflicts of interest," the Albany County Supreme Court dismissed the malpractice claim but left the misappropriation theory in place -- even though Deep's case was started over three years after the "theft" supposedly occurred and was arguably "untimely."

While the Appellate Division, Third Department, agreed Deep couldn't establish malpractice, it was unclear whether the governing time-bar or "statute of limitations" had run for the misappropriation claim since the doctrine of "continuing trust and confidence" applied to the case. Though the parties had completely lost faith in each other, by the time Boies attempted to withdraw from the trademark litigation, the federal court saw that move as prejudicial and ordered the firm to continue working on the matter. According to the AD3, an ongoing attorney-client relationship tolled the time Deep had to file a claim against his counsel, but because there was some uncertainly as to when the relationship ended, that question was left to be decided after a formal hearing or trial.

Although it was also disputed who actually owned Aimster, the AD3 didn't find that to be a relevant consideration since the substance of Deep's case dealt with his lawyer's alleged "fail[ure] to protect the intellectual property [Deep] developed and his ownership interest in that property."

Now that's Deep.

j0295192.gifTo download a copy of the Appellate Division's decision, please use this link: Deep v. Boies