12 March 2012

So You Wish to Register a Complaint?

Norwegian Blue?What do you do if you have an issue with a Registered Australian Patent or Trade Marks Attorney?

Well, firstly you should raise it with the attorney.  The vast majority of problems which arise in the client-attorney relationship are the result of misunderstandings.  And while the attorney bears primary responsibility for keeping the client informed of actions, recommendations and anticipated costs, there are inevitably circumstances in which this is challenging, and breakdowns of communication occur.  If the relationship is otherwise on solid ground, these matters are usually easy to resolve.

But if this fails, or the concerns are more serious – typically implying a loss of the necessary trust between the client and the attorney – what recourse do you have?

If the attorney is a member of the Institute of Patent and Trade The Institute of Patent and Trade Mark Attorneys of Australia (IPTA), the matter may be brought to its Ethics and Disputes Committee, which considers complaints made to the Institute against any of its members.  However, membership of IPTA is not compulsory or universal, and the Institute has no formal powers to impose sanctions outside of the organisation.  Nonetheless, IPTA may act as an effective mediator when attorney and client have ceased to communicate productively.

The body charged with handling formal complaints against Australian Patent and Trade Marks Attorneys under the Australian Patents Regulations 1991, is the Professional Standards Board for Patent and Trade Marks Attorneys (PSB).  The PSB has the power to investigate complaints (and to compel the attorney to cooperate with the investigation), and to refer a complaint to the Patent and Trade Marks Attorneys Disciplinary Tribunal for adjudication.  The Tribunal has the power to impose sanctions of: reprimanding the attorney; suspending registration for up to 12 months; or cancelling registration.

GROUNDS AND PROCEDURES FOR MAKING A COMPLAINT

A complaint may be brought to the PSB on the grounds that an attorney:
  1. has breached the Code of Conduct;
  2. has engaged in professional misconduct or unsatisfactory professional conduct;
  3. was unqualified at the time of registration, or
  4. has obtained his or her registration by fraud.
The first two of these grounds most commonly form the basis for complaints by clients.

Once a complaint has been filed, the process is as follows:
  1. the Secretary of the PSB informs the attorney, and invites an initial response;
  2. the Secretary then provides a written report to the PSB setting out the details of the complaint and the attorney’s response;
  3. if the PSB considers that the allegations raise the possibility of unsatisfactory professional conduct or of professional misconduct, it conducts a formal investigation; and
  4. if, following the investigation, the PSB is satisfied that there is a reasonable likelihood of the attorney being found guilty, it commences prosecution before the Disciplinary Tribunal.

THE CODE OF CONDUCT

Since amendments were made to the Regulations in 2008, breaches of the Code of Conduct for Patent and Trade Marks Attorneys [PDF 190kB] have officially been a basis for action by the PSB.

All attorneys should therefore be familiar with the Code.  It is also a good idea for clients to be familiar with the Code, not only to understand what they can expect of their attorney, but also because it includes some useful advice about what an attorney might reasonably expect of a client, in order to provide the best possible service and avoid any misunderstandings.

Section 4.2 of the Code states that clients should:
  1. assist the attorney to provide appropriate advice or take appropriate action by disclosing all relevant information they hold in respect of the rights sought;
  2. provide attorneys with clear and timely instructions based on the advice given;
  3. provide timely responses to requests from the attorney;
  4. settle accounts provided by attorneys promptly, including charges for overseas actions commissioned by the attorney in accordance with client instructions;
  5. provide advance payments when requested; and
  6. observe the same standards of honesty and courtesy in the relationship as are required of the attorneys themselves.
Of course, the Code requires much more of attorneys, including:
  1. not to undertake work for which they are not qualified;
  2. to clearly indicate qualifications, and to bring appropriate expertise to bear (including technical expertise) in undertaking work for clients;
  3. to uphold appropriate professional standards;
  4. to keep clients informed of procedures, time frames and costs;
  5. to use proper accounting practices when handling client funds;
  6. to take reasonable steps to avoid conflicts between a client’s interests and those of the attorney, or of another client, and to act promptly to extricate themselves from the situation if such a conflict arises; and
  7. not to engage in misleading or deceptive behaviours or practices;

‘MISCONDUCT’ AND ‘UNSATISFACTORY CONDUCT’

The terms ‘unsatisfactory professional conduct’ and ‘professional misconduct’ – which both provide grounds for complaint – are defined in the Regulations.

Unsatisfactory professional conduct includes conduct, in connection with practice as a registered attorney, that falls short of the standard of competence, diligence and behaviour that a member of the public is entitled to expect of an attorney.

Professional misconduct means:
  1. unsatisfactory professional conduct that involves a substantial or consistent failure to reach reasonable standards of competence and diligence; or
  2. any other conduct, whether occurring in connection with practice as an attorney or otherwise, that shows that the attorney is not of good fame, integrity and character; or
  3. any contravention of a law that is declared by the Regulations to be professional misconduct.
Clearly ‘professional misconduct’ is intended to cover more egregious breaches of professional standards than ‘unsatisfactory professional conduct’.  Indeed, the sanction of cancelation of registration is available only if a finding of professional misconduct is made by the Tribunal.  At the lower level, only a reprimand or a suspension may be ordered. 

Furthermore, if the PSB considers there is a reasonable likelihood that an attorney would be found guilty of professional misconduct, it must commence proceedings before the Tribunal.  In the case of unsatisfactory professional conduct, the PSB has discretion not to commence proceedings.

WHAT A COMPLAINT CANNOT ACHIEVE

Neither the PSB nor the Tribunal has the power to award damages for losses resulting from an attorney's behaviour.  Claims for compensation for overcharging, failure to perform services, for damage or for loss of profits, and so forth, must be pursued elsewhere.  This may be, for example, in a relevant small claims tribunal, or through the courts.

An example of such an claim was decided by the High Court in New Zealand last year (see NZ High Court Clears Patent Attorneys of Negligence).  We are unaware of any comparable case in Australia.

The PSB is therefore not an especially effective avenue for settling disputes which have arisen purely over attorney fees and charges.  While a failure on the part of an attorney to effectively communicate anticipated costs to a client is unfortunate, and a possible breach of the Code of Conduct, an isolated instance of such a dispute is unlikely to rise to the standard of ‘unsatisfactory professional conduct’, or result in the PSB commencing proceedings before the Tribunal.  Furthermore, in such circumstances the client usually just wants their money back, and not some possible future moral victory at the Tribunal, and the PSB simply has no power to make this happen.

Of course, an ongoing pattern of overcharging by an attorney could ultimately constitute the higher level of professional misconduct.

CONCLUSION

There are a number of avenues via which an aggrieved client may pursue a complaint against a patent or trade marks attorney in Australia.

Generally speaking, the client should first raise the matter with the attorney (or the management of their firm).  Most disputes result from misunderstandings or poor communication, and the solution to this is not less communication!

If the attorney and/or client are unwilling, or unable, to resolve a dispute, other potential avenues include:
  1. the Institute of Patent and Trade Mark Attorneys of Australia;
  2. small claims tribunals;
  3. mediation; and
  4. the courts.
If the complaint results from a breach of the Code of Conduct, or relates to possible unsatisfactory professional conduct, or professional misconduct, then it may be a case for the PSB.  Prospective complainants are advised to contact the Secretary of the PSB to discuss the issue, and the options available to progress the matter.

Contact details for the PSB are available on their web site.

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