Ethics for IP Attorneys
First, we will discuss challenging ethical issues for in-house intellectual property attorneys. We will begin this segment by examining ethic rules relating to conflicts of interest and attorney-client privilege. We will then proceed to discuss who is the client under the Model Rules, and the difference between providing legal advice and business advice. We will then discuss ethical issues that arise for in-house counsel relating to litigation and investigations, and the difference between doing what is ethical versus doing what is lawful. Finally, we will discuss the unauthorized practice of law and the rules of various states for obtaining admission to the bar for purposes of representing a single corporate employer.
Second, we will discuss the United States Patent and Trademark Office (USPTO) Rules of Professional Conduct, which effective May 3, 2013, became modeled on the American Bar Association’s Model Rules of Professional Conduct. See Changes to Representation of Others Before The United States Patent and Trademark Office, Federal Register, Vol. 78, No. 64, April 3, 2013. During this segment we will also review and discuss the Office of Enrollment and Discipline (OED), which is responsible for the disciplinary regulation of patent practitioners at the USPTO. In this segment we will review OED’s proposal to implement both bar dues and a CLE requirement for patent practitioners, as well the OED’s jurisdiction to take disciplinary action. Finally, we will review select Final Orders and Settlements resulting from disciplinary proceedings brought by the Office of Enrollment and Discipline at the USPTO, with specific emphasis on the unauthorized practice of law.
Third, we will discuss rules relating to the ethical requirement that attorneys diligently represent clients, which has historically manifested itself in the duty of zealous representation. In this segment we will explore the ethical ground rules associated with diligent, zealous representation. We will also specifically examine discussion examples dealing with hypothetical negotiations in order to determine when exaggeration or puffery is acceptable under ethics rules. We will also examine if/when silence can be considered to be a lie under ethics rule. We will finally examine when it is appropriate under the rules to reasonably rely on what an attorney has told you.
About MCLE Credit
MCLE has been approved in Texas (2 hrs), Virginia (2hrs), Oklahoma (2.5 hrs) and Missouri (2.4 hrs). Application for MCLE pending in Arkansas.
States including California, Florida, Illinois, Hawaii, New Jersey, New York, North Dakota and Wisconsin accept credits when a course has been approved by another MCLE jurisdiction, as has occurred here.
Other states require attending attorneys to complete a form requesting credit. Some states, such as Alabama, Georgia, Louisiana, Minnesota, Ohio, Pennsylvania, Tennessee and Washington require attorneys to submit an application for approval of courses taken out of state. These states sometimes require the application to be submitted immediately following the completion of the CLE activity, please check the requirements in your state.