Implied Attorney–Client Relationship in Joint Patent Prosecution & Jury-Driven Accrual for Malpractice Discovery

Case: BlueRadios, Inc. v. Hamilton, Brook, Smith & Reynolds, P.C. (1st Cir. Feb. 2, 2026)

1. Introduction

This First Circuit decision sits at the intersection of (i) patent prosecution practice involving multiple business participants and (ii) Massachusetts legal-malpractice limitations law. BlueRadios, Inc., a Colorado wireless-technology company, collaborated with Kopin Corporation on the “Golden-i” headset project under a contract providing that intellectual property developed for Golden-i would be jointly owned, while Kopin alone would decide whether and how to seek patent protection “at Kopin’s expense.”

Kopin retained the Massachusetts IP boutique Hamilton, Brook, Smith & Reynolds, P.C. (“HBSR”). BlueRadios alleges that while HBSR was working with BlueRadios on Golden-i prosecution, the firm secretly advanced Kopin’s interests by amending applications to remove BlueRadios inventors/assignees, abandoning at least one application without telling BlueRadios, and filing a terminal disclaimer asserting Kopin held 100% interest—again without notice.

The district court granted summary judgment to HBSR, holding (1) all claims were time-barred, (2) no equitable tolling applied, and (3) no attorney-client relationship existed between BlueRadios and HBSR. The First Circuit reversed in part, vacated in part, and remanded.

2. Summary of the Opinion

• Legal malpractice timeliness: The court reversed the district court’s ruling that the legal-malpractice claim was untimely as a matter of law. It held that, under Massachusetts’ discovery rule (Williams v. Ely), the record presented jury questions as to when BlueRadios knew or reasonably should have known of “appreciable harm” causally connected to HBSR’s conduct.
• Other claims’ timeliness: The court vacated the untimeliness rulings as to other causes of action (e.g., breach of fiduciary duty, fraudulent nondisclosure, Chapter 93A) and remanded for the district court to reassess accrual (the panel declined to “enshrine” an assumption that identical accrual rules applied across claims).
• Attorney-client relationship: The court reversed the district court and held that an attorney-client relationship between BlueRadios and HBSR existed as a matter of law under the implied-relationship test in DeVaux v. American Home Assurance Co..
• Equitable tolling: The panel did not decide tolling doctrines at this stage, reasoning that BlueRadios did not need them to reach a jury given the court’s statute-of-limitations and relationship holdings.

3. Analysis

3.1. Precedents Cited

A. Massachusetts discovery rule and “appreciable harm”

• Williams v. Ely (Mass. 1996): The anchor for malpractice accrual—limitations begins when the client “knows or reasonably should know” of “appreciable harm” caused by the lawyer’s conduct. The court stressed that the client need not know the full extent of injury nor that the lawyer was negligent, but must have enough to connect injury to the lawyer.
• Taygeta Corp. v. Varian Assocs., Inc. (Mass. 2002) and Khatchatourian v. Encompass Ins. of Mass. (Mass. App. Ct. 2010): Deployed to emphasize that “when a plaintiff knew or should have known” is “in most instances” a fact question for the trier of fact, with summary judgment appropriate only when discovery facts are undisputed.
• Int'l Mobile Corp. v. Curron & Black/Fairfield & Ellis, Inc. (Mass. App. Ct. 1990) and Frankston v. Denniston (Mass. App. Ct. 2009): Used to define “appreciable harm” and require a causal link to the defendant’s conduct.
• Levin v. Berley (1st Cir. 1984), Rosen Constr. Ventures, Inc. v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. (1st Cir. 2004), and Eck v. Kellem (Mass. App. Ct. 2001): These cases collectively shaped the panel’s rejection of the district court’s “fees alone” accrual theory. The panel distinguished “additional legal fees to ameliorate” malpractice (potential accrual trigger) from fees incurred for other reasons or before the client is actually put on notice of wrongdoing—especially where prior counsel continues to maintain correctness.
• Cambridge Plating Co. v. Napco, Inc. (1st Cir. 1993): Cited for the proposition that a factfinder may reasonably attribute problems to non-negligent causes, postponing accrual.

B. “Misgivings” and the limits of early suspicion

• Lyons v. Nutt (Mass. 2002): The district court relied on this to conclude that once a client recognizes counsel “didn’t know what they were doing,” accrual begins even if representation continues. The First Circuit distinguished it: a single internal email calling an omission “sort of reckless” did not equate to Lyons’s wholesale repudiation of counsel competence.
• RTR Technologies, Inc. v. Helming (D. Mass. 2011): Distinguished as involving repeated, open expressions of concern and active investigation years earlier—more than isolated doubt.
• Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc. (1st Cir. 2005): Critically, the panel used this to reject the idea that notice of one problem starts the clock for all later, similar wrongs in a complex matter. This supported letting a jury parse distinct alleged acts spanning years, including post-relationship conduct (e.g., later abandonments/amendments).

C. Public availability and “constructive notice” skepticism

• Wise v. Hubbard (1st Cir. 1985): The district court used Wise to argue that USPTO-public records made harm knowable. The First Circuit read Wise as focusing on when the patent issued and was recorded, not merely when an application was filed.
• Geo. Knight & Co. v. Watson Wyatt & Co. (1st Cir. 1999): Distinguished because it involved an actuarial relationship and an internal accountant actually bringing the issue to the client’s attention. By contrast, the panel emphasized the attorney-client dynamic and the reality that non-lawyers receiving technical patent filings may not reasonably be expected to “spot” prosecution-related legal harms.
• Bank of Am., N.A. v. Casey (Mass. 2016): Used to highlight that “constructive notice” is a distinct legal concept and should not be casually substituted for the discovery rule’s “reasonably should know” inquiry.
• Marsh v. Nichols, Shepherd & Co. (1888): Quoted via amicus-supported reasoning to underscore the difference between applications and issued patents when analyzing “property right” and knowability.

D. Implied attorney-client relationship

• DeVaux v. American Home Assurance Co. (Mass. 1983): The controlling three-part test for an implied attorney-client relationship. The First Circuit held BlueRadios satisfied prongs 1 and 3 as a matter of law (and prong 2 was undisputed).
• Sheinkopf v. Stone (1st Cir. 1991) and Int'l Strategies Grp., Ltd. v. Greenberg Traurig, LLP (1st Cir. 2007): Cited for the “concrete communication” requirement and “totality of the circumstances” framework, but ultimately distinguished because the record here showed far more than subjective belief.
• Robertson v. Gaston Snow & Ely Bartlett (Mass. 1989): Distinguished as involving an uncommunicated belief of representation and no indication the firm represented the plaintiff’s interests.
• Page v. Frazier (Mass. 1983): Used for the principle that attorney-client relationships may be implied from the parties’ conduct.
• Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc. (1st Cir. 2005) and Naturalock Sols., LLC v. Baxter Healthcare Corp. (N.D. Ill. 2016): Invoked to support the proposition that an attorney-client relationship commonly exists in aligned/common-cause patent prosecution.
• Sun Studs, Inc. v. Applied Theory Associates, Inc. (Fed. Cir. 1985): Used by the district court to say a power of attorney does not “ipso facto” create a relationship. The First Circuit distinguished it on facts (notably, the underlying contract there required assignment of inventions to the undisputed client, unlike Golden-i’s joint ownership).

E. Tolling doctrines (raised, but not decided)

• Murphy v. Smith (Mass. 1991) and Cantu v. St. Paul Cos. (Mass. 1987): Framed the “continuing representation” doctrine and its limitation where the client has already repudiated confidence in counsel. The First Circuit did not apply the doctrine, but its attorney-client holding removes one district-court premise for denying it.
• Demoulas v. Demoulas Super Markets, Inc. (Mass. 1997) and Mass. Gen. Laws c. 260 § 12: Identified as the backbone of “fraudulent concealment” tolling.

3.2. Legal Reasoning

A. Accrual: why “receipt” and “public file history” did not end the case at summary judgment

The First Circuit’s limitations analysis is best understood as a disciplined application of Massachusetts’ discovery rule to a highly technical practice area. The district court’s approach effectively treated (i) receipt of amended patent applications and (ii) their availability on the USPTO website as sufficient, as a matter of law, to charge BlueRadios with knowledge of “appreciable harm” caused by HBSR.

The panel rejected that reductionism for three connected reasons:

• Technical complexity and client posture: Viewing the record favorably to BlueRadios, a jury could find the company was a tiny, engineer-run business lacking patent sophistication. The court emphasized the normative structure of legal representation articulated in Rosen Constr. Ventures, Inc. v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.: clients should not be forced to “double-check” specialized attorney work merely because documents pass through their inbox.
• Non-equivalence of “could have found” vs “reasonably should have found”: Even if USPTO records were accessible, that does not resolve—at summary judgment—whether it was reasonable to expect these plaintiffs to find, interpret, and appreciate the legal significance of inventorship/assignment changes and downstream consequences.
• Multiple alleged wrongs over time: The panel relied on Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc. to reject the “one early red flag starts the clock for everything” theory, particularly where some pivotal alleged misconduct occurred after communications ceased (e.g., later abandonment and later amendments).

B. November 2014: why hiring a patent lawyer did not automatically equal accrual

The district court treated BlueRadios’s instruction to its outside patent lawyer, James Klobucar, to research Golden-i-related patents as proof of notice of harm. The First Circuit found the evidence ambiguous, and therefore jury-suitable, because:

• Kramer's testimony could be read as reflecting difficulty navigating USPTO searches, not suspicion of wrongdoing—an ambiguity the district court did not resolve in the nonmovant’s favor.
• The “fees as appreciable harm” line of cases (Levin v. Berley, Frankston v. Denniston) did not compel accrual where a jury could find Klobucar’s work was undertaken for portfolio valuation reasons, not to “ameliorate” known malpractice; and where no pre-cutoff “meeting of the minds” had occurred conveying to BlueRadios a malpractice theory.
• The “client is charged with knowledge of his attorney” notion from Levin v. Berley did not end the analysis because the record did not establish—beyond dispute—that Klobucar had complete, actionable knowledge before the cutoff date, or that BlueRadios had received that knowledge in time.

C. Relationship: joint patent prosecution can create an attorney-client relationship without an engagement letter

The relationship holding is the opinion’s clearest doctrinal development. Applying DeVaux v. American Home Assurance Co., the court held an implied attorney-client relationship existed between HBSR and BlueRadios as a matter of law.

• Prong 1 (seeking advice/assistance): The court rejected the idea that because the contract gave Kopin the “sole right and responsibility” to decide patent filings, BlueRadios could not have sought legal assistance. Kopin’s selection of HBSR was for a “common undertaking” under a joint-ownership agreement that HBSR reviewed and billed time to analyze. Beyond that structural point, the record showed direct BlueRadios–HBSR interactions (meetings without Kopin present, trade-secret sharing to facilitate prosecution, execution of powers of attorney, BlueRadios-directed claim-scope requests).
• Prong 2 (within competence): Patent prosecution plainly fell within HBSR’s professional competence and was undisputed.
• Prong 3 (agreement/provision of assistance or reasonable reliance): HBSR actually provided the assistance by filing applications that listed BlueRadios inventors and/or pursued patents for the joint endeavor, and BlueRadios reasonably relied on HBSR to do so. The panel also pointed to the patent practice context—where acting “on behalf of” parties carries an authorization representation (37 C.F.R. § 1.34)— and noted that describing HBSR in some communications as “Kopin’s patent attorney” could not overcome the totality of conduct showing joint representation.

3.3. Impact

A. For patent-prosecution counsel (especially in joint-development deals)

• Clarity of representation becomes critical: The decision heightens risk that prosecution counsel will be deemed to represent multiple stakeholders (joint owners, collaborators, inventors/assignees) even without a formal engagement letter, when counsel reviews a joint-ownership contract, receives powers of attorney, and takes direction from both sides.
• Conflict and governance hygiene: Although not the basis of the holding, the factual allegations about a firm partner’s deep corporate ties to one party underscore why clear conflicts checks, written waivers, and explicit non-representation letters may be essential in collaborative innovation.
• Prosecution events as malpractice exposure points: Abandonments, terminal disclaimers, assignee/inventor alterations, and unilateral “ownership” assertions may generate malpractice claims years later; BlueRadios suggests courts may resist early accrual arguments that hinge merely on public file histories or technical document transmission.

B. For Massachusetts malpractice limitations practice

• Reinforced jury role: The opinion is a strong reiteration that, under Taygeta Corp. v. Varian Assocs., Inc., accrual is typically for the factfinder where technical context, document ambiguity, client sophistication, and multi-act timelines matter.
• “Constructive notice” caution: By questioning the district court’s terminology (via Bank of Am., N.A. v. Casey), the panel discourages conflating public record availability with discovery-rule accrual.
• Segmentation of wrongs: Reliance on Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc. supports treating separate alleged wrongs separately for accrual purposes in complex, multi-year professional engagements.

C. Litigation strategy consequences

• Summary judgment becomes harder in technical-malpractice cases: Defendants can no longer assume “they got the documents” or “it was on a government website” will carry limitations arguments as a matter of law, at least where plaintiffs can plausibly claim lack of specialized understanding and reliance on counsel.
• Early relationship motions may flip: Plaintiffs may pursue partial summary judgment on attorney-client relationship where record conduct resembles BlueRadios (powers of attorney, direct direction, joint filings).

4. Complex Concepts Simplified

• Patent prosecution: The process of applying for a patent at the USPTO (ex parte). It is not criminal prosecution. Applicants and their attorneys have a duty of candor to the PTO (37 C.F.R. § 1.56(a)).
• Inventorship vs. ownership/assignment: Inventors are natural persons who conceived the invention; ownership can be transferred (assigned) to a company. Errors or manipulations can affect who controls patent rights and who benefits financially.
• PCT application: An international “placeholder” filed under the Patent Cooperation Treaty to preserve rights internationally.
• Terminal disclaimer: A filing used to overcome certain “double patenting” rejections by disclaiming part of a patent term or scope (37 C.F.R. § 1.321). It can have major ownership and enforceability implications.
• Statute of limitations “accrual” under the discovery rule: The limitations clock starts not necessarily when the lawyer acts, but when the client knows or reasonably should know of measurable harm caused by that act (Williams v. Ely).
• Tolling agreement: A contract that pauses the limitations clock. Here it preserved whatever claims were still timely as of December 5, 2017.
• Continuing representation / fraudulent concealment: Doctrines that can pause the limitations clock in some circumstances, but the First Circuit did not reach them because the case could proceed without them at summary judgment.

5. Conclusion

BlueRadios establishes two practical rules of consequence in the First Circuit’s Massachusetts-malpractice docket: (1) in technically complex representations like patent prosecution, accrual under the discovery rule will often be a jury question, and mere receipt of technical filings or their public availability will not automatically bar claims at summary judgment; and (2) where counsel prosecutes patents for a joint development under a joint-ownership contract and interacts directly with both sides (including powers of attorney and direction on claims), an implied attorney-client relationship can exist as a matter of law under DeVaux v. American Home Assurance Co..

On remand, the litigation will proceed with the relationship question resolved in BlueRadios’ favor, and with limitations questions substantially reopened—leaving the central narrative question (what BlueRadios reasonably knew and when) for the factfinder rather than being short-circuited by document-transmission or USPTO-publication arguments.