Considerations about the Code of Conduct for UPC representatives

G. Checcacci (IT), PCC

In the long path towards UPC, an interesting step is the definition of the code of conduct for representatives.

Since the beginning of July, it is possible to download a draft code of conduct from the website of the UPC, see https://www.unified-patent-court.org/file/112/download?token=RUCko2XM.
This draft is the result of a joint effort of epi together with EPLAW (a private association of European patent lawyers: http://eplaw.org/) and EPLIT (a private association of European patent litigators: http://www.eplit.eu/). It is not yet a code, as only the future Administrative Committee of the UPC will have the power to adopt a code of conduct, when UPC eventually comes to life. This might mean years from now, and besides there is no guarantee that the Administrative Committee will actually adopt this draft as the code of conduct; nevertheless reading this draft is an interesting and after all short- exercise.

The first interesting aspect of this draft code is merely political: its provisions will apply equally to UPC representatives under art. 48(1), i.e. the lawyers, and UPC representatives under art. 48(2), i.e. the European Patent Attorneys allowed to represent. So, after the milestone constituted by art. 48(2) itself, this draft code is a further step towards a better recognition of the equal dignity of our profession in the field of patent litigations.

When considering the actual provisions of the draft code, it is necessary to start from the framework already defined by the UPC Rules of Procedure, in particular rules 290.2 and 291.1:

Rule 290.2: Representatives who appear before the Court shall strictly comply with any code of conduct adopted for such representatives by the Administrative Committee.

Rule 291.1: If the Court considers that the conduct of a party’s representative towards the Court, towards any judge of the Court or towards any member of the staff of the Registry is incompatible with the dignity of the Court or with the requirements of the proper administration of justice, or that such representative uses his rights for purposes other than those for which they were granted, or that such representative is otherwise in breach of any code of conduct adopted pursuant to Rule 290.2 it shall so inform the person concerned. On the same grounds, the Court may at any time, after having given the person concerned an opportunity to be heard, exclude that person from the proceedings by way of order. That order shall have immediate effect.

In simple words, rule 291.1 already defines a disciplinary body (the Court itself) and a sanction for behaviours in breach of the code of conduct (exclusion from the proceeding), as well as a disciplinary procedure (information - opportunity to be heard - order).

This is something dramatically different from what we are used to within epi. The sanction consisting in the exclusion from the proceeding is potentially very hard for the specific case, however not so much on the personal record of the representative; indeed, there is no such record, and -in principle- a representative might repeatedly breach the code of conduct without any direct consequences on his ability to address clients. One might argue about the lack of any "social effect" of a disciplinary system like this, that does not give the public any sort of guarantee about the quality of the service provided by a representative, but this goes beyond the purpose of this article.

It is to be noted that Rules 290 and 291 do not exclude that (further) disciplinary bodies and sanctions are defined by the code of conduct; however, the present draft code does not include anything like that.

The draft code is accompanied by a memo that gives some explanations about the process by which the draft code was defined. Inter alia, it is explained that some important aspects (e.g. conflicts) had to be left out of the draft code because of the difficulties in coordinating with existing national provisions: lawyers do not have a unified European profession; rather, they are subject to national laws. The memo also seems to keep a door open in respect of the possible future introduction of a disciplinary body; for the time being, however, there is just a reference to national and epi provisions.

The draft code itself is divided in four sections:
1 - Field of application
2 - General conduct
3 - Dealings with Witnesses and Party Experts
4 - Change of representation

In the first section (Field of application), it is stated that this code applies to all activities of all representatives in relation to the UPC. There is also an explicit reference to possible other existing codes and laws and to their possible disciplinary measures. This reference means that the obligations of this code must be seen as additional obligations with respect to existing other obligations, that remain valid (as far as applicable) and will be treated according to the respective laws and codes: for European Patent Attorneys, this means that epi disciplinary provisions apply, and indeed they are under revision in these months in order to clearly define their application to UPC-related activities.

In the second section (General conduct), six subsections address different aspects of the conduct.

A first aspect is relationship with the Court (judges as well as registry staff): respect, courtesy, competence (based on education), reputation of the respective professional association (e.g. epi) are the keywords here. I trust that this is not surprising for anybody. A note explains that the reference to competence shall not be intended as a basis for imposing any formal requirement for Continuing Professional Education.

A second aspect is the conduct of the proceedings, that must be fair. Here, good faith and non-abuse of the procedure are the keywords; again, no surprise. A possibly unexpected provision is the obligation to be reasonably accommodating and flexible regarding scheduling and routine matters: this seems an obligation for which European Patent Attorneys might have to be a bit more careful than they are used, e.g. in opposition proceedings before the EPO.

A third aspect relates to contacts with judges, that must be limited to situations where the other parties also participate (or give their consent).

A fourth aspect is demeanour in Court and this includes several obligations. The representative must serve the interests of the clients, without regard to personal feelings or interests. Courtesy must be applied also in respect of other representatives, accompanying persons, parties, witnesses and experts, and a representative is responsible for taking appropriate steps to ensure that any accompanying person behaves appropriately. This latter obligation, however, does not seem to imply that a representative is responsible for misbehaviours of accompanying persons.

A fifth aspect is misleading information. Preliminarily, it must be kept in mind that a strong obligation not to misrepresent a case or facts is already included in art. 48(6) UPCA. Here, it is added that the representative must seek client's consent to inform the Court if he/she becomes aware of any inadvertently misleading information. This is not intended to introduce a US-style inequitable conduct doctrine (as explained in a note to the draft code); however it seems a quite strong obligation.

A sixth aspect somehow rules confidential information: in case a representative ‑in the course of a proceeding, e.g. inspection of premises- gets knowledge of information not related to the case, he/she must neither use nor disclose that information to anybody, including the client.

In the third section of the draft code (Dealings with Witnesses and Party Experts), three aspects of such dealings are ruled.

The first aspect relates to information on legal obligations and provides that the representative has the burden of keeping experts and witnesses informed of their obligations, in particular obligation of impartiality.

The second aspect relates to contacts with witnesses and party experts: they can be contacted only in limited circumstances and in a way that their opinions are not influenced.

The third aspect rules the possible compensation for witnesses and party experts.

Ultimately, all provisions of this third section of the draft code derive from the fact that both witnesses and experts (even party experts) have the same duty of impartiality, as provided by the RoP, rules 175-181: the conduct of the representative must be such as to ensure that this duty is respected.

Finally, the fourth section (Change of representation) define that the former representative must both inform the UPC Registry of the change and transfer or copy documents to the new representative.

This is the content of the four sections of the draft code. Then, one might look for what is not contained in the draft code, and here the list might be long.

In short, it might be said that any provisions similar to those of epi code of conduct (such as advertisements or relations with the public, with clients, with other representatives) are excluded from this draft code. Representatives who are epi members will have anyway the duty to comply with epi code of conduct; other representatives (i.e. lawyers) might have to comply with national code of conducts, depending on their place of business. This means that in practice representatives will not be subject to the same obligations: all of them will be subject to the minimum obligations of the UPC code of conduct (which is a good point), however each representative might be subject also to other obligations depending on the country and on the official association to which the representative belongs (which is certainly not the best).

Thus, this situation is well acceptable now, at the beginning of UPC operation. However, we can legitimately hope that later, after some time, the code of conduct is revised, to obtain a better uniformity of provisions among all representatives, in all associations and in all countries.