The Disciplinary Tribunal has found a former partner of a firm of patent and trade mark attorneys in Adelaide guilty of unsatisfactory professional conduct, for failing to resolve a conflict of interest between two clients, in breach of clause 3.2.8 of the
Code of Conduct for Patent and Trade Marks Attorneys [PDF 190kB]. A second attorney – who was only recently qualified, and who had been working under the supervision of the senior attorney – was also charged by the
Professional Standards Board, however that charge has been dismissed.
(For readers wanting more information about the disciplinary procedures in Australia, see our recent article
So You Wish to Register a Complaint?)
Naming names?
We have avoided naming any of the parties involved in this case. This is not to conceal the identities of the attorneys against whom the complaint was made, or their firm. They are named in the Tribunal’s decision, which is available for all to read from the link below.
The Tribunal determined that no further orders of disciplinary action should be made. In doing so, it took account of the fact that the powers to discipline a practitioner are intended to protect the community, rather than as a punishment. There are, of course, inevitably punitive consequences to any adverse finding, for example damage to reputation, regardless of the extent of disciplinary action.
It is not our place to question the Tribunal on this finding, and there does not appear to be any reason to do so. Naming the parties in a blog which tends to rank highly in web searches directed to Australian patent law and practice might result in unintended adverse – and therefore punitive – consequences for those parties. We have therefore elected not to name names here, and trust that readers will understand and respect this decision.
Some of the key lessons from the Tribunal’s decision are:
- while it is common (probably unavoidable) that attorneys and firms in a market of Australia’s relatively small size may act for multiple clients which may be commercial competitors, there is no general agreement in the profession as to precisely how and when a situation of conflict arises with regard to such clients;
- the duty to avoid conflicts is fiduciary in nature, i.e. it arises from the duty of the attorney to give undivided loyalty to the client, and always to advise and act in the client’s best interests;
- a conflict therefore inevitably arises when two clients have conflicting interests, for example if advice given to one client may impact adversely on another, or if an attorney is aware of confidential information relating to one client which would influence the advice given to the other client;
- the duty to avoid conflicts is not limited to individual attorneys, but extends to a firm, even if there is no explicit information-exchange between different attorneys acting for the clients in question; and
- on a practical level, if a client decides that an attorney has a conflict, and asks for their files to be transferred to another firm, it is very likely that a great deal of trouble, expense and distress may be avoided by simply complying with the request, rather than arguing the point!
Despite the finding of guilt, no disciplinary action has been ordered against the senior attorney. The Tribunal considered that the attorney’s conduct, ‘while serious, is at the lower end of the scale of seriousness for such misconduct’ and ‘is the only proven allegation of misconduct that has been made against [the attorney in a] very long career as a registered patent attorney.’
The Tribunal also concluded that the senior attorney (and presumably the junior attorney also) would now have a fuller understanding of the duty, and that of the firm, ‘to avoid situations of conflict, or possible conflict of interest and the duty to resolve any such situation.’
The Tribunal’s decision – which is available
on the web site of the Professional Standards Board [PDF, 2.4MB] – should be compulsory reading for all Australian registered and trainee patent and trade marks attorneys. It will also be useful to providers of legal and other professional services, in order to clarify the issues around conflicts of interest.
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