03 May 2022

Attorney Code of Conduct Passes ‘Health Check’ with Flying Colours

Health Check The Trans-Tasman IP Attorneys Board (TTIPAB) has published a report, and its response, on a Health Check of the Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018 [PDF, 2.05MB].  The Report was prepared by Professor Andrew Christie, who was commissioned by the Board to conduct the review, commencing in July 2021.  The ‘health check’ covers not only the Code of Conduct, which is a statutory instrument by which all registered patent and trade marks attorneys are bound, but also the Guidelines to the Code of Conduct [PDF, 95kB].  The Guidelines are non-binding and are intended to assist people to understand the Code and the conduct it covers.  The purpose  of the review was to confirm whether the Code was working as intended, and to identify any improvements or clarification to the Code and Guidelines.  The review process included conducting structured interviews with 26 stakeholders (attorneys, general counsel of listed groups, representatives of attorney professional associations, and clients).  The interview questions were based on an analysis of issues raised by complaints made to the Board over the past few years.

The headline outcome of the ‘health check’ is that no amendments to the Code of Conduct were found to be necessary.  More particularly, Professor Christie concluded that the Code ‘has no major deficiencies, and there are no major problems with its provisions’.  He found, however, that ‘there is significant scope to provide more guidance on the application of the Code’s provisions by enhancement of the Guidelines.’  The Board has accepted a number of recommendations for specific improvements to the Guidelines.

Other key observations of the Report include:

  1. most stakeholders have a satisfactory awareness and understanding of the Code, and of the Board, but there is scope for improvement among junior attorneys and clients that do not have a registered attorney on staff;
  2. firms within the two publicly listed ownership groups provide appropriate disclosure to clients of their group membership, however individual firms (as opposed to the holding companies) need to improve the clarity with which they disclose the identities of other firms within their group;
  3. the evidence is that firms within ownership groups act independently from other members of their group in the provision of attorney professional services, as required under the Code;
  4. there is no basis to believe that attorneys in ownership group firms are in breach of their core obligations under the Code (i.e. to place following the law, and the interests of clients, the public and the profession, ahead of other considerations, including the interests of shareholders);
  5. clients of firms in ownership groups are being appropriately informed when their consent is required for firms within the same ownership group to act on opposing sides in adversarial matters; and
  6. some dissatisfaction with the Board’s complaint handling process has been identified within the profession.

The Board has identified and responded to 34 recommendations in the Report.  Ten of these are recommendations for no action to be taken, which the Board has merely ‘noted’ (there being nothing for it to do).  Of the remainder, the Board has ‘accepted’ 17 recommendations for enhancements to the Guidelines.  The Board has also ‘noted’ six substantive recommendations, where it recognises that a relevant issues has been raised, but proposes to pursue a different course from that which has been recommended.  Finally, there is one recommendation, relating to specific circumstances around potential conflicts of interest, that the Board has ‘not accepted’ because of concerns that it ‘would introduce unnecessary complexity and ambiguity’ to the Code.

I do not intend to go through every recommendation in detail – anybody who is that interested (which should include all registered attorneys) can read the Report and Response!  However, I would like to highlight the points that caught my attention, and add a little of my own commentary.


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