What To Do If You’re Unhappy With An Australian Patent Attorney

What do you do if you have a complaint about your Australian patent attorney?

The first thing to be aware of is that most Australian patent attorneys are not lawyers.  Furthermore, even if your patent attorney is one of the few who is also qualified as a lawyer, they may not be acting in that capacity when assisting you with your patent matters.  They are therefore unlikely to be subject to the disciplinary regime that applies to lawyers.  You will not advance your cause by threatening to make a complaint to the relevant regulatory body for lawyers in the state in which your attorney is practising!

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 PSB (which ought to know, since it receives a number of complaints each year) indicates that most disputes between patent attorneys and their clients fall into two categories:

1. disputes where there is evidence that the attorney has acted inappropriately; and
2. disputes where the client has not achieved their objectives, or there is a dispute over costs, unpaid bills or other aspects of the relationship.

If your issue falls into the first category, then you may well need to take your complaint to the PSB.  Indeed, if your attorney has engaged in ‘unsatisfactory professional conduct’ or ‘professional misconduct’ (see below), and refuses to acknowledge or address your concerns in any meaningful way, then I would encourage you to contact the PSB.  Attorneys who genuinely lack an understanding and appreciation of their professional obligations to their clients and the community at large are liable to bring the profession as a whole into disrepute.  I therefore support such cases being dealt with via the formal disciplinary mechanisms provided under the Patents Act 1990 and the Regulations.

However, the majority of Australian patent attorneys are diligent, ethical and professional.  While we are also human, and therefore not immune from the occasional lapse, for the most part we care about our clients, and want our professional relationships to be effective and mutually beneficial.  So, in most cases, the PSB should not be the first port of call for a disgruntled client.

That being said, much of this article is about what you need to know, what you can expect, and what you can realistically hope to achieve, before taking a complaint to the PSB.

Before Making A Formal Complaint…

Most complaints made to the PSB do not ultimately result in any formal disciplinary proceedings being instituted.  No doubt many complainants are disappointed by this.  However, I suspect that, in large part, this disappointment stems from a misunderstanding of the scope of the powers of the PSB, and of what actually constitutes the kind of inappropriate behaviour that can be addressed under the disciplinary regime that applies to Australian patent attorneys.

For example, whatever you might think, the fact that your patent application was rejected is almost certainly not an indication of incompetence on the part of your patent attorney.  Furthermore, your attorney almost certainly did not ‘promise’ you that you would obtain a patent, or that you would be able to successfully enforce it against your competitor.  Yes, it is called ‘intellectual property’ (and in many important respects a patent is property), however it does not come with the same level of certainty as real property!

So, before you go running to the PSB you should raise your issue with your attorney.  The vast majority of problems which arise in the client-attorney relationship are the result of misunderstandings.  And while your attorney bears primary responsibility for keeping you 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.

If your attorney is employed by a firm, you should also find out whether the firm has a formal complaint resolution procedure.  Even if there is no advertised process, contacting a managing partner, CEO or other member of the firm’s management team may lead to a speedy resolution of your issue.

As a further option prior to making a formal complaint to the PSB, if your attorney is a member of the 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.

If all this fails, or the concerns are more serious – typically implying a loss of the necessary trust between the client and the attorney – then it may be time to contact the PSB.

Preparing to Contact the PSB

Before contacting the PSB, I recommend that you read the Code of Conduct for Patent and Trade Marks Attorneys.  Since the commencement of the Raising the Bar reforms in 2013, the Code of Conduct has been given enhanced legal force, and is a key instrument employed by the PSB to determine whether or not to commence disciplinary proceedings.

In particular, the PSB must consider whether or not a registered patent attorney has complied with the Code of Conduct, when deciding whether the attorney has any case to answer.

If your issue relates to a matter that is clearly addressed by the Code of Conduct, then there are much better prospects that the PSB will be in a position to take action.

Some of the things that the Code of Conduct requires of your attorney are:

1. not to act fraudulently or deceitfully;
2. to maintain standards of professional practice that are courteous, ethical and well-informed;
3. to have appropriate competency (including relevant legal and technical knowledge) for the work that he or she performs on your behalf as a client;
4. to provide new or prospective clients with written information confirming that the attorney is registered, has appropriate competency, and is bound by the Code of Conduct (many attorneys will do this through standard ‘terms of engagement’ documents, and may refer you to information on their web sites);
5. to provide written estimates of costs for work where you may not already have a reasonable expectation of likely costs (this applies to new clients, and to existing clients when performing work of a materially different nature from any past work) – note, however, that patent attorneys are not required to provide and abide by formal quotations for work, and precise costs are sometimes difficult to estimate;
6. to give you adequate opportunity, if practicable, to review drafts of patent specifications prior to filing;
7. to avoid creating conflicts of interest, and to take prompt steps to resolve any conflicts of interest that may arise;
8. to maintain the confidentiality of information that you provide; and
9. to handle and apply money that you pay for specific purposes in accordance with those purposes.

You should also gather as much evidence as possible to support your complaint.  This generally requires written documentation, and/or detailed notes of meetings and telephone conversations with your attorney.  Your unsupported assertions regarding the behaviour of your attorney are unlikely to be sufficient to support a complaint.  If you do not have written records, I can assure you that your attorney almost certainly will!  Patent attorneys keep copies of everything!

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’ (see below);
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.

Complaints should be made in writing to the Secretary of the PSB, and should include:

1. your name and contact details;
2. the name and address of the registered attorney;
3. the nature of the complaint; and
4. supporting evidence, such as documents or statements.

Contact details can be found on the PSB web site.

Conduct and Misconduct

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.

Thus ‘professional misconduct’ is intended to cover more egregious breaches of professional standards than ‘unsatisfactory professional conduct’.

Procedure

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;
4. if, following the investigation, the PSB is satisfied that there is a reasonable likelihood of the attorney being found guilty of unsatisfactory professional conduct, it may commence prosecution before the Patent and Trade Marks Attorneys Disciplinary Tribunal; and
5. if, following the investigation, the PSB is satisfied that there is a reasonable likelihood of the attorney being found guilty of professional misconduct, it must commence prosecution before the Patent and Trade Marks Attorneys Disciplinary Tribunal.

You will note that the PSB has discretion as to whether or not it commences prosecution of the attorney on the lesser charge of unsatisfactory professional conduct, however prosecution in cases of likely professional misconduct is mandatory.

What Can You Expect – Or Not – If the Attorney Is Found Guilty?

If an attorney is found guilty of professional misconduct, the Tribunal has the power to impose sanctions of: reprimanding the attorney; suspending the attorney’s registration for up to 12 months; or cancelling the attorney’s registration.

If an attorney is found guilty of the lesser charge of unsatisfactory professional conduct, the available sanctions are limited to reprimanding the attorney or suspending the attorney’s registration for up to 12 months.

It is generally understood that the primary purpose of the disciplinary regime is to ensure the integrity of the profession and to protect the public from provision of substandard, fraudulent or otherwise inappropriate services.  As such, ‘punishment’ of patent attorneys is not a primary consideration, and ‘compensation’ of ‘victims’ is barely a consideration at all.

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 or 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 a claim was decided by the High Court in New Zealand in 2011 (see NZ High Court Clears Patent Attorneys of Negligence).  However, I am 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 may not rise to the standard of ‘unsatisfactory professional conduct’, or result in the PSB commencing proceedings before the Tribunal.  If you find yourself in this situation, it is likely that what you really want is to get some of your your money back.  Some possible future moral victory at the Tribunal is therefore unlikely to bring you satisfaction, although an ongoing pattern of overcharging by an attorney could ultimately constitute the higher level of professional misconduct.

Conclusion

In summary, there are a number of avenues via which an aggrieved client may pursue a complaint against a patent attorney in Australia.

Generally speaking, if you have a grievance, you should first raise the matter with your 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 you cannot resolve your concerns directly, 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. 

Tags: Australia, Patent attorney profession, Professional conduct