These guidelines set out the procedures that the Professional Standards Board for Patent and Trade Marks Attorneys (PSB) will follow in relation to investigating an incorporated patent attorney or an incorporated trade marks attorney (incorporated attorney) and deciding whether or not to apply to the Patent and Trade Marks Attorneys Disciplinary Tribunal (Tribunal) for cancellation or suspension of the incorporated attorney's registration.
The PSB has also issued guidelines on the discipline procedures relevant to an individual registered attorney.
- The legislative basis of the PSB's role in disciplinary proceedings against an incorporated patent attorney is regulation 20A.10 of the Patents Regulations 1991 (the Regulations). The legislative basis of the PSB's role in disciplinary proceedings against an incorporated trade marks attorney is regulation 20A.10 of the Trade Marks Regulations 1995 which are generally similar to the provisions provided by the Patents Regulations.
- The focus of the PSB's disciplinary procedures in relation to an incorporated attorney is to decide whether or not to apply to the Tribunal for cancellation or suspension of an incorporated attorney's registration.
- The PSB is not empowered to order or provide restitution to clients of incorporated attorneys. Informants seeking restitution for such matters as overcharging or failure to perform services, compensation for damage or for loss of profits, or the return of documents, need to pursue such restitution or compensation in other forums. It should be noted, however, that neither the PSB nor the Secretary to the PSB is able to provide legal advice.
Basis for a cancellation or suspension application
- The PSB may apply to the Tribunal to cancel or suspend an incorporated attorney's registration if:
- an attorney who is, or was, an employee or officer of the incorporated attorney is found guilty of professional misconduct; and
- the professional misconduct occurred when the attorney was an employee or officer of the incorporated attorney; and
- the Tribunal has cancelled or suspended the attorney's registration.
- The Regulations define professional misconduct as:
- unsatisfactory professional conduct that involves a substantial or consistent failure to reach reasonable standards of competence and diligence; or
- 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
- any contravention of a law that is declared by the regulations to be professional misconduct.
- In deciding whether to apply to the Tribunal the PSB may consider:
- the professional misconduct engaged in by the attorney;
- the behaviour of the incorporated attorney's officers and employees;
- whether the officers and employees of the incorporated attorney complied with the Code of Conduct; and
- any other information provided by the incorporated attorney in relation to the professional misconduct of the attorney.
Requiring information from the attorney
- The PSB may request an incorporated attorney to provide information to the PSB in relation to the professional misconduct.
Commencing a cancellation or suspension application
- Once the PSB determines that it will commence a cancellation or suspension application in relation to an incorporated attorney, the PSB must formulate reasons why it considers the incorporated attorney's registration should be cancelled or suspended.
- An application for cancellation or suspension of an incorporated attorney's registration (application) must be made in writing to the Tribunal and must set out the reasons for the application.
- A copy of the application must be given to the incorporated attorney by the PSB as soon as practicable after the application is made to the Tribunal.