The following is an overview of both a licensee’s obligations to provide competent services and CPATA’s new Technical Competency Profiles.
The Scenario
The Code of Professional Conduct (the Code) provides that licensees owe their clients a duty to be competent in their service delivery.
On March 2, 2023, CPATA’s Board of Directors adopted Technical Competency Profiles for Patent Agents and Trademark Agents. While the Technical Competency Profiles do not create any new ethical obligations for licensees vis-à-vis their clients, the Technical Competency Profiles are designed to set out clear expectations for practitioners about what skills are necessary to provide competent services to clients. In other words, the Technical Competency Profiles are a helpful reference point for licensees with respect to the basic competencies expected of a competent agent.
The Rules
The Code sets out as its Fundamental Canon that,
Irrespective of the possibility of formal sanction under any of the rules in this Code, an agent must at all times conduct themselves with integrity and competence in accordance with the highest standards of the profession in order to retain the trust, respect and confidence of members of the profession and the public.
The Principle of Part 1 of the Code, which sets out the rules with respect to Competence, provides that licensees must perform “services undertaken on a client’s behalf to the standard of a competent agent.”
The Commentary provides that licensees are, in effect, “held out as knowledgeable, skilled and capable in the subject matter of their agency” and clients are “entitled to assume that the agent has the ability and capacity to deal adequately with all agency matters to be undertaken on the client’s behalf.”
Rule 1-2 provides that,
An agent fails to meet the standards of professional competence if (a) there are deficiencies in (i) their knowledge, skill or judgement.
The Rule goes on to state that a deficiency in an agent’s knowledge, skill or judgement “give[s] rise to a reasonable apprehension that the quality of service they provide to clients may be adversely affected.”
The Code requires that when a licensee “reasonably believes that they may not be competent to handle a particular matter…[they] must (a) decline to act; (b) obtain the client’s consent…to become competent without undue delay, risk or expense to the client; or (c) obtain instructions form the client to retain, consult or collaborate with another agent who is competent to handle the matter” (see Rule 1-1).
The Commentary states that “Competence of an agent is founded upon both ethical and applicable legal principles” and Rule 1-4 provides that an agent has an obligation to stay abreast of developments in the law as it relates to their practice.
It is important to note, however, that the Competence rule
does not require a standard of perfection. An error or omission, even though it might be actionable for damages in negligence, professional fault or contract, will not necessarily constitute a failure to maintain the standard of professional competence described by the rule.
Technical Competency Profiles
The Technical Competencies are intended to “guide Canadian IP agents in understanding the competencies associated with safe, effective, and sustainable practice”. The Technical Competencies are not intended to be exhaustive or to include every competency that an IP agent might need.
One of the professional foundations that is currently set out in the Technical Competencies is the ability to act professionally, which includes the ability to recognize the limits of one’s own competence.
The Technical Competencies set out foundational concepts that all agents should have “entry-to-practice competence in”.
CPATA’s Guidance
A licensee’s ethical obligations under the Code are distinct from but intertwined with the Technical Competency Profiles. The Technical Competencies are intended to help define competence in a manner that guides future regulatory and educational opportunities. Because the Technical Competencies are intended to set out clear expectations for practitioners about what skills are necessary to provide competent services to clients, they may help inform a licensee in their evaluation of whether they have the requisite knowledge to competently assist their client.
Additionally, reviewing the Technical Competencies may assist a licensee in identifying areas they may wish to brush up on. When a licensee is considering their ethical obligations with respect to competence, the Technical Competency Profiles may be a good place to begin with respect to evaluating the basic competencies all agents should have.
Ultimately each licensee has to decide what the correct course of action is that will protect client interests and adhere to their professional obligations. Every circumstance is unique and it is up to the licensee to exercise their own professional judgement.
We invite you to contact us with your ethics questions. Through the Ethics Inquiry process, CPATA’s professional conduct experts are available to help interpret the Code as part of the process of risk-assessment and ethical analysis.