USPTO Trying Out Diversion Program for Struggling Practitioners

On November 3, 2017, the United States Patent and Trade Office (USPTO) announced that the agency’s Office of Enrollment and Discipline (OED) will be launching a two-year pilot diversion program for patent and trademark practitioners who commit minor ethical lapses without causing actual client harm. The program is a chance for practitioners to avoid discipline by taking affirmative steps to rectify the underlying issue that caused their misconduct. The motivation behind the program came from a recent study which found high levels of drinking, substance abuse and depression among American lawyers. The USPTO hopes that the diversion program will help put lawyers suffering from addiction or mental health issues on the path to resolve their misconduct and prevent future misconduct.

However, not everyone will qualify for the pilot program. For example, practitioners cannot participate if they have been publicly disciplined in the past three years. In addition, practitioners cannot take part if the misconduct includes (1) misappropriation of funds or dishonesty, deceit, fraud or misrepresentation; (2) substantial prejudice to anyone; (3) serious crime; or (4) anything resembling prior misconduct in the past five years.

The USPTO expects and anticipates that the program will further the mission of protecting the public by strengthening the skills and abilities of USPTO practitioners.

To read the OED Diversion Pilot Program click here.

To read the full USPTO article click here.

To read the study mentioned click here.

LA County Bar: Attorneys Hooked by Online “Catfish” Risk Ethical Violations

The Los Angeles County Bar Association Professional Responsibility and Ethics Committee recently issued an advisory opinion considering the repercussions for an attorney who communicates sensitive information to an online “catfish” –otherwise known as an individual who assumes a false identity in order to elicit sensitive information or otherwise defraud an unsuspecting person. The committee concluded that although an attorney may believe that his online disclosures are “innocuous,” the “lawyer’s unguarded disclosure of client information might result in violations of the duties of competence and confidentiality and might cause the loss of the lawyer-client privilege and work product protection.”

In the advisory opinion, the committee analyzed a scenario where an attorney communicated with a person online who claimed to be working in a “non-legal industry.” During their conversation, the attorney mentioned pending interviews with witnesses in an ongoing litigation, including information like the location of a witness and the subject of an expert’s expected testimony. The attorney was unaware that the person he was corresponding with was “actually associated with the opposing side of a pending case in which [the] attorney represents [the] client and is ‘catfishing.’”

In a detailed analysis of online “catfishing” and the “interplay of advancing technology and the lawyer’s professional responsibilities,” the committee reasoned that though the “incautious” online activity did not rise to the level of a full waiver of evidentiary privilege, the disclosures were enough to allow a person familiar with the litigation to “identify the witnesses and the significance of [the] attorney’s disclosure.” As such, the committee concluded that the scenario constituted a breach not only of the professional rules related to competence and confidentiality, but also a breach of the California Business and Professions Code 6068(e)(1), a state statute which obligates each attorney to preserve client “secrets.”

Read the full opinion here.