Australian Patent Attorneys Urged to Get More Ethics Training

Revised guidelines for Continuing Professional Education (CPE) issued on 28 November 2012 by the Professional Standards Board for Patent and Trade Marks Attorneys (and soon to appear on the Board's web site) require registered practitioners to undertake a minimum of one hour of ethics or professional conduct CPE in each year.  Currently, the minimum total CPE requirement is 10 hours for practitioners registered as either patent attorneys or trade marks attorneys, and 15 hours for practitioners registered as both.

While one hour per year may not seem like much, this is a significant step for the profession, both practically and symbolically.

Part of the background to the new guideline is a recent decision of the Disciplinary Tribunal, which found a senior Australian patent practitioner (now retired) guilty of unsatisfactory professional conduct, for failing to resolve a conflict of interest between two clients of his Adelaide firm, both of which had developed directly competing inventions.  We reported on this decision back in April this year (see Senior Patent Attorney Found Guilty of ‘Unsatisfactory Conduct’).

One consequence of the Tribunal's decision was to turn a spotlight on the lack of agreement amongst patent and trade marks attorneys in Australia as to exactly how and when conflicts arise, and how they should be identified and resolved.  The Professional Standards Board provided evidence of one senior member of the profession who testified to his opinion that the practitioner's firm was clearly in a conflict situation at least from the time that one of the clients discovered, and complained about, the firm’s acting for the other client in August 2007.  However, two other senior members of the profession provided completely contrary evidence on behalf of the practitioner!

FORMAL PROFESSIONAL CONDUCT TRAINING

It is fair to say that there are many in the broader legal professions in Australia who would be surprised at the low standards reflected in some of the evidence presented to the Tribunal in this case.  Most Australian patent attorneys are not lawyers, nor have they had the benefit of learning at the feet of experienced members of the legal profession who have been steeped in the lore (and law) of professional ethics from the earliest years of their training.  Patent attorneys generally receive very little formal education on professional ethics.  For example, recently-registered attorneys who qualified via on-campus courses within the tertiary education system will generally have attended a total of around 300 hours of lectures and seminars, of which perhaps four to eight hours would have been dedicated to professional conduct.  Non-contact study time, and examination of the corresponding principles, is proportional to the contact hours.

Fortunately, things are changing a little with the latest generation of attorneys coming through the system.  The larger number of undergraduate double-degrees enabling students to combine law with a technical qualification means that a greater proportion of qualifying patent attorneys have a general legal education, in addition to their IP specialisation.  And we hear that some institutions are working to increase the number of hours of course content relating to issues of professional conduct.

NO SUBSTITUTE FOR EXPERIENCE

There is little question, however, that the best way to learn how to deal with difficult issues of ethics and professional conduct is on the job, and with the support, assistance and advice of more senior and experienced practitioners.  Assuming, of course, that those senior practitioners have themselves mastered fundamental ethical principles and their application to a broad range of situations which may arise in practice.  In this regard, one of the issues faced in the Australian profession is that the requirement for any formal training in ethics is a relatively recent development, post-dating the qualification of the most senior practising attorneys.

Requiring registered patent attorneys to devote as much as 10% of their annual minimum CPE requirement to ethics is important not only to ensure that these professional advisors remain current on issues and developments in this area, but also for the message it sends about the importance of ethical conduct in the profession.  As with so many other things, it is the ‘unknown unknowns’ (to quote Donald Rumsfeld) that present the greatest risk.  Those practitioners who believe that they do not need ethics training, or who think that this stuff is ‘simple’, are often those most in need of continuing education!

Additionally, the introduction of a formal requirement for ethics CPE is almost certain to result in various providers of professional education and training courses introducing new offerings targeted specifically to the requirements of patent and trade marks attorneys.

SUITABLE STUDY TOPICS

Every Australian registered patent and trade marks attorney should have received an email from the Professional Standards Board notifying them of the new guidelines.  However, for the benefit of non-attorney readers and training service providers (and any attorneys who might have missed out), here is the Board’s list of examples of study topics likely to meet the CPE requirement in relation to ethics:

1. Professional conduct generally in relation to the practice of a patent or trade marks attorney.
2. An attorney's duty to his/her clients.
3. Matters covered in the Code of Conduct for Patent and Trade Marks Attorneys.
4. The rights, privileges and responsibility of a patent or trade marks attorney.
5. Privilege.
6. Confidentiality.
7. Professional liability and negligence.
8. Conflict of interest.
9. Fiduciary obligations to clients.
10. New case law relating to any of the above (including decisions of the Patent and Trade Marks Attorneys Disciplinary Tribunal).

CONCLUSION

We realise that not all registered Australian patent attorneys share our enthusiasm for CPE in general, or for continuing development in relation to ethics in particular.  However, we agree with the introductory remarks in the Board’s guidelines:

As members of a profession, patent and trade marks attorneys have an obligation to develop and maintain their knowledge and skills so that they can maintain high standards of service.

Clients have a right to expect this of us.  They also have a right to expect that we will conduct ourselves ethically and professionally, according to some generally-accepted contemporary standards.

It is worth bearing in mind that up to three hours per year of CPE (4.5 hours if registered as both a patent and trade marks attorney) may comprise self-study.  We are not sure whether the Designated Manager (IP Australia Director General Philip Noonan) would consider reading Patentology to qualify for this component, however over the course of a year this blog would direct attorneys to far more than three hours’ worth of qualifying material, such as current Australian case law.

We understand that the requirement for a minimum of one hour ethics/professional conduct CPE is effective immediately, i.e. will be a requirement for CPE during the current 2012/13 fiscal year.

Tags: Australia, Patent attorney profession, Professional conduct