This means that registered attorneys are required to undertake a minimum number of hours of professional development each year. For those of us registered as both patent and trade marks attorneys the minimum is 15 hours, of which at least five must relate to patents, and at least five to trade marks. Attorneys registered in only one discipline are required to undertake a minimum of ten hours of CPE activity relating to their practice.
This means that when you engage the services of a registered Australian attorney you can be confident that they are at least minimally up-to-date on developments in their area of practice. We would hope, however, that most practitioners are exceeding the minimum requirements.
The CPE regime has been in place since 1 July 2008, which makes the patent profession a relative newcomer to formal continuing education requirements. The system is designed to be generally self-regulating, with a degree of enforcement in the form of annual audits of a randomly-selected sample of attorneys seeking re-registration each year. After an initial grace period, to allow attorneys to adjust to the new regime, the first audit was conducted in the latter half of 2011, based on a selection of 50 attorneys from a range of backgrounds.
THE ‘REPORT CARD’Most Australian registered attorneys should by now have received a letter from the Designated Manager responsible for renewals of registration – currently the Director General of IP Australia, Mr Philip Noonan – regarding the outcome of the inaugural audit.
Reading between the lines of the letter, it seems that a not-insignificant number of audited attorneys may not have provided the level of information and evidence expected. Aside from reminding attorneys of the number of hours required, and the need for the CPE activities claimed to be relevant to the area of registration (i.e. practice as a patent and/or trade marks attorney), the letter is also at pains to point out that:
Private study - e.g. reading of journal articles - is restricted to 3 hours for patent or trade marks attorneys and 4.5 hours for those registered as both, to ensure a balance of activities. Online seminars can be a valuable alternative source for those who may have difficulty accessing seminars or conferences.
Furthermore, in order to ensure that attorneys provide the necessary information, a template has been developed for use in future audits.
The letter concludes with a paragraph which we can only interpret as a gentle rebuke, and a warning:
The introduction of CPE for the profession was an important step taken by the Parliament to ensure the quality of service provided by attorneys. Used well, CPE has a significant potential to enhance the standing of the profession. Other professions have more stringent requirements and I am of the view that what is being asked of attorneys is reasonable and feasible. While no sanctions were imposed on audited attorneys whose records were deficient on this first occasion, a higher standard of compliance will be required in future audits.
A MIXED BAG?We can only agree wholeheartedly with the above sentiments. The accumulation of 10 or 15 hours of CPE over the course of a year is no doubt the least that clients would expect of their trusted advisors. Quite likely, reading the Patentology blog may be counted towards the allowable private study time – so if you are an attorney reading this, we hope you have the clock running!
For many of us who work in larger firms in the major population centres, there are numerous opportunities for CPE, both in-house and through external activities. We also have the benefit of the wisdom of our more-experienced colleagues to draw on. The challenges of keeping on top of developments are greater for sole practitioners, and those in small firms or in regional areas. The CPE regime is therefore important, to provide clients with reassurance that the attorneys they are engaging are keeping abreast of any significant changes in law and practice.
The CPE regime for patent and trade marks attorneys in Australia is still in its infancy,and we expect that compliance will improve over time, as practitioners become more accustomed to the requirements.
It appears that the report card from the 2011 audit was something of a mixed bag, but that the Designated Manager is adopting a lenient approach at this stage, while the profession becomes familiar with the requirements and expectations.