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Opinion from PCC on the duty of members to raise a matter before the Disciplinary Committee

The Professional Conduct Committee (PCC) provides opinions upon enquiries from epi members under Art. 7(c) of the epi Code of Conduct. Any opinion given does not have regulatory force and is prepared with the intention to provide helpful assistance. No liability of any kind attaches to the epi, the Professional Conduct Committee or any members of that Committee in respect of these opinions. In accordance with Article 7(c) CoC, opinions of the Professional Conduct Committee shall not be binding on the disciplinary bodies. The following opinion has been considered useful for epi members as the questions it addresses are particularly significant. Hence, it has been decided to publish it, in anonymised form.

Summary of enquiry

Question 1: Is there a process for the Disciplinary Committee of the Institute of Professional Representatives before the European Patent Office (“DC”) to consider decisions of a national patent attorney regulator in an EPO Contracting State and consider whether action should be taken in relation to the same individual in relation to their epi registration?

Question 2: Does a Member of the Institute of Professional Representatives before the European Patent Office (“Member”) have a duty to raise a matter before the DC if the Member was involved in proceedings before a national patent attorney regulator about misconduct of another Member of the Institute of Professional Representatives before the European Patent Office (“Other Member”).

Relevant Provisions

  1. Regulation on Discipline for Professional Representatives, Art 1(2), Art 6, Art 26(1)
  2. epi Code of Conduct, Art 3(a), Art 5(a), Art 7(d)
  3. Additional Rules of Procedure of the Disciplinary Committee, Art 7

Opinion

Question 1

There is no process for monitoring decisions of national patent attorney regulators.

However, if the Disciplinary Committee (DC) is made aware of such a decision, it may take action. According to our rules, the DC shall consider any alleged breach of the Rules of Professional Conduct which may be brought to its notice in writing (Art 6 RDR). More specific requirements for filing a complaint are contained in the Additional Rules of Procedure of the Disciplinary Committee (see Art 7 AddRPDC). The complaint shall be in writing addressed to the DC. It shall be signed by the complainant or any legal advisor or professional representative acting on their behalf and shall include the name and address of the complainant. The complaint must be written in one of the official languages of the EPO.

Question 2

Referring to the interpretation of the Code of Conduct (“epi CoC“) and especially Art 7(d) of the epi CoC, the Professional Conduct Committee (“PCC”) considers that, regardless of the circumstances, there is no obligation of a Member to bring to the notice of the DC a decision concerning the misconduct of another Member (“Other Member”), issued by a national patent attorney regulator.

However, the PCC invites each Member to consider whether the specific circumstances of the misconduct of the Other Member, as addressed by a national regulator, merit bringing the decision to the attention of the DC, especially in the light of Art 1(2) of the Regulation on Discipline for Professional Representatives (RDR), which outlines that a professional representative shall conduct themself in such a manner as not to prejudice the necessary confidence in the professional representatives profession and in the light of Art 3(a) of the epi CoC, which outlines a Member’s duty to uphold the public reputation of the Institute.

Factors that may influence this personal assessment include, for example

  • the severity of the breach and its consequences for the client,
  • whether the national regulator’s decision relates to a European patent or European patent application,
  • whether the Other Member in question also/still practises before the EPO,
  • the degree of alignment between the national code of conduct and the epi CoC,
  • how familiar the Member is with the circumstances of the misconduct,
  • how long ago the breach occurred noting the period of limitation of five years under Article 26 (1) RDR; and
  • the extent of harm or burden experienced by the Member considering notifying the DC.

In this context, the PCC also refers to Art 5(a) of the epi CoC and emphasizes the importance of Members observing good fellowship. This includes evaluating one’s own interests in the matter.

Summary of Opinion

There is no process for monitoring decisions of national patent attorney regulators. However, if the Disciplinary Committee (DC) is made aware of such a decision, it may take action and the DC shall consider any alleged breach of the Rules of Professional Conduct which may be brought to its notice in writing (Art 6 RDR).

Referring to the interpretation of the Code of Conduct (epi CoC) and especially Art 7(d) of the epi CoC, the Professional Conduct Committee (PCC) considers that, a Member is under no obligation, under any circumstances, to notify the DC of a decision concerning the misconduct of another Member (“Other Member”), issued by a national patent attorney regulator. However, the PCC invites each Member to consider whether the specific circumstances of the misconduct of the Other Member, as addressed by a national regulator, merit bringing the decision to the attention of the DC. Especially in the light of Art 1(2) of the Regulation on Discipline for Professional Representatives, which outlines that a professional representative shall conduct himself in such a manner as not to prejudice the necessary confidence in his profession, Art 3(a) of the epi CoC, which outlines a Member’s duty to uphold the public reputation of the Institute and Art 5(a) of the epi CoC, which outlines a Member’s duty to observe good fellowship. The period of limitation of five years under Article 26 (1) of the Regulation on Discipline for Professional Representatives should also be noted.

This opinion does not have regulatory force and is prepared with the intention to provide helpful assistance. An opinion provided in accordance with Article 7(c) CoC is not binding on the Disciplinary Bodies. No liability of any kind attaches to epi, its Professional Conduct Committee or any members of that Committee in respect of this opinion.

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