Making a complaint against an attorney

Making complaints against IP attorneys – your rights

The Trans-Tasman IP Attorneys Board (the Board) is the only body responsible for investigating and prosecuting complaints against registered attorneys.

The Board can act on information from any source, including a complaint from a member of the public, alleging professional misconduct or unsatisfactory professional conduct by an attorney.

The public should note that a person can perform most of the tasks expected of a trade marks attorney without being registered with the TTIPAB.

However, it is illegal for them to claim that they are registered with the TTIPAB if they are not.

It is also illegal for a person to claim that they are a trade marks agent if they are not registered as a trade marks attorney, a patent attorney or a lawyer.

Any person acting as a patent attorney is required to be registered with the TTIPAB.

The Patents Regulations 1991 sets out a regime to deal with cases where it is believed a registered attorney has acted inappropriately.

Penalties relate solely to discipline of the attorney, and include suspension or cancellation of their registration.

Generally, disputes between patent and trade marks attorneys and their clients tend to fall into two categories:

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

What you should know about the regulations (the disciplinary regime)

It is important that the public understands that the regulations do not give complainants a forum to obtain damages for losses resulting from an attorney's behaviour where:

  • claims seek restitution for overcharging or failure to perform services
  • compensation is for claims for damage or for loss of profits
  • actions seek the return of documents

These claims need to be pursued in other forums.

The Ethics and Disputes Committee of The Institute of Patent and Trade Mark Attorneys of Australia considers complaints against any of its members.

This regime is independent of the formal provisions included in our regulations.

Sanctions apply only to the institute’s membership.

Grounds for complaints to the Board

Grounds for complaints to the Board about an attorney can include claims that they:

  • have breached the Code of Conduct
  • have engaged in professional misconduct or unsatisfactory professional conduct
  • were unqualified at the time of registration
  • obtained their registration by fraud

Professional misconduct includes:

  • unsatisfactory professional conduct that involves a substantial or consistent failure to reach reasonable standards of competence and diligence
  • 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
  • any contravention of a law that is declared by the regulations to be professional misconduct.

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.

How to make a complaint

If you have a grievance with an attorney, you should first attempt to settle the issue directly with the attorney concerned.

If this fails, contact the Secretary to the Board to discuss the complaint.

For details see Contact us.

What information you should provide

When making a complaint, you should provide as much information as possible to us, including:

  • your name and contact details
  • the name and address of the registered attorney
  • the nature of the complaint
  • supporting evidence, such as documents or statements

What happens next

Once a complaint has been filed, the Secretary to the Board will inform the involved attorney, send them the information you have provided in your complaint, and invite an initial response.

You may then be invited to comment on the attorney’s response.

The Secretary will then provide a written report to the Board setting out details of the complaint and any initial response from the attorney (together, if applicable, with your additional comments).

If, following an investigation, the Board is satisfied there is a likelihood of the attorney being found guilty, it will start a prosecution before the Trans-Tasman IP Attorneys Disciplinary Tribunal (the Tribunal).

You can ask the Board to notify you of the outcome of an investigation.

You may be asked to supply more information during an investigation.

Hearings and decisions

Complaints about patent and trade marks attorneys can be escalated to the Tribunal. The tribunal is also established under the regulations.

The Board commences disciplinary proceedings by giving notice to the Tribunal.

The Tribunal sets the time, date and place for a hearing.

The date must be at least 21 days after the attorney has been given a copy of the notice.

How hearings are conducted

Hearings are conducted quickly and informally, while allowing for the matter to be properly considered. The Tribunal is not bound by the rules of evidence, but may take evidence on oath.

Hearings before the Tribunal must be in public unless the Tribunal decides it is not in the public interest to do so, or because of the confidential nature of any evidence or matter before the Tribunal.

Appearing before the Tribunal

Parties before the Tribunal may appear in person, or be represented by legal practitioners. The Tribunal also has the power to allow a person other than a legal practitioner to represent a person.

Parties before the Tribunal may request the tribunal to summon witnesses.

Witnesses summoned to appear must give evidence and produce documents mentioned in the summons. Where the attorney is summoned, they must produce documents and give evidence to identify the documents.

People summoned to appear or provide documents are subject to penalties if they do not comply without a reasonable excuse.

It is a defence to refuse to answer a question or produce a document or article if the answer to the question or the document or the article may tend to prove the person had committed an offence against a law of the Commonwealth or a state or territory.

Tribunal findings

The tribunal may, depending on the charge brought against the attorney, find that a registered patent attorney is:

  • not guilty of any wrongdoing
  • guilty of professional misconduct
  • guilty of unsatisfactory professional conduct.

Where the tribunal finds an attorney guilty of professional misconduct it may:

  • cancel the attorney's registration
  • suspend the attorney's registration between six and 12 months
  • require the attorney to undertake additional continuing professional education
  • require the attorney to work for a period of time not exceeding two years under the supervision of a person who has been registered for not less than five years.

Where the tribunal finds the attorney guilty of unsatisfactory professional conduct, it may:

  • administer a public reprimand to the attorney
  • suspend the attorney's registration for up to 12 months
  • require the attorney to undertake additional continuing professional education
  • require the attorney to work for a period of time not exceeding two years under the supervision of a person who has been registered for not less than five years.

The tribunal must give a written statement of its decision, setting out the reasons for the decision and the findings on any material questions of fact.

The tribunal must arrange for a written statement setting out the decision to be published in the Australian Official Journal of Patents.

Unqualified at time of registration

The tribunal may reprimand an attorney found guilty of being unqualified when they registered if:

  • the attorney has since obtained the registration
  • the registration is no longer required.

In other cases, the tribunal may cancel the registration.

Registration obtained by fraud

If the tribunal finds that the attorney obtained his or her registration by fraud, the tribunal must cancel the registration.

Appointing a registered patent attorney to carry on a practice

The tribunal may appoint a registered patent attorney to carry on the practice of a former patent attorney whose registration has been cancelled or suspended.

Where a registered attorney is appointed to carry on the practice, the attorney must obtain the clients' consent to act on their behalf.

Decisions of the tribunal

Re Kevin Pullen PDF in PDF format [77 KB]

Re Howard Schulze & Re Phillip Boehm PDF in PDF format [20.86 MB]

Jamie Ricardo Massang - complaint by AB - decision as to penalty - 24 November 2009 PDF in PDF format [55.2 KB] (as amended by the PSB to de-identify the complainant)

Jaimie Ricardo Massang - complaint by AB - decision 10 June 2009 PDF in PDF format [179.21 KB] (as amended by the PSB to de-identify the complainant)

Blenkinship - Complaint by Nielsen and Techmin Pty Ltd PDF in PDF format [1.02 MB]

Hodgkinson - Complaint by McLean PDF in PDF format [1.97 MB]

Kelly - Complaint by Nuttall PDF in PDF format [47.71 KB]

Disciplinary Tribunal decision - PSB vs Macauley PDF in PDF format [322.96 KB]

Appealing a decision

Appeals against decisions made by the tribunal can be lodged through the Administrative Appeals Tribunal (AAT):

  • against a decision of the tribunal to find the attorney ‘guilty’ or ‘not guilty’
  • about the level of penalty imposed by the tribunal

Appeals must follow the requirements specified on the AAT website. For more information contact the AAT registry in your relevant state.

There are no explicit provisions in the regulations covering an appeal against a decision made by the TTIPAB not to commence proceedings before the tribunal.

Persons are recommended to seek professional legal advice if they wish to appeal against these TTIPAB decisions.