Judicial estoppel inapplicable in legal malpractice suit to statements made by attorney made in prior capacity as plaintiff’s lawyer

by Christopher J. Graham and Joseph P. Kelly

Encyclopedia Britannica, Inc. v. Dickstein Shapiro, LLP, Case No. 10-0454 (JDB) (D. D.C. Nov. 26, 2012)

Judicial estoppel didn’t preclude defendant law firm from making an argument that contradicts statements made during the firm’s representation of plaintiff in patent infringement suit. Law firm took position in malpractice suit that patents weren’t infringed. But one of the firm’s attorneys had earlier stated in an affidavit that “some of the claims are unquestionably infringed.” Court noted it would be improper to apply judicial estoppel to a non-party, like the attorney who made the initial statement. Even so, the court stated that it would be improper to apply judicial estoppel to statements “made in its prior capacity as the now-opposing party’s lawyer or representative.” Doing so could potentially limit the “full and vigorous representation” of legal clients because lawyers would have to choose between the client’s interest and preventing a future malpractice suit.

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