Quality of Service means more than providing competent and timely assistance to clients. As an ethical obligation, quality of service also involves things like having frank and honest conversations with clients about the merits of their applications and ensuring clients understand the process and the costs involved in their application.
The following analysis applies when a licensee disagrees with their client or needs to tell their client something their client may not wish to hear. It outlines what the CPATA Code of Professional Conduct (the “Code”) has to say about the ethical obligations a licensee has to be open and transparent with their clients and how that is understood as a quality of service obligation.
The Scenario
A licensee has a regular client whom they have represented in many successful applications. The client comes to the agent seeking representation for a new patent application. In the agent’s professional opinion, the client’s application has almost no chance of succeeding.
The Rules
The Principal of Part 4 of the Code states that
An agent must be both honest and candid when advising a client and must inform the client of all information known to the agent that may affect the interests of the client in the matter.
Rule 4-2 sets out
The agent’s advice must be open and transparent and must clearly disclose what the agent honestly thinks about the merits of the matter at issue and the likely results.
The Commentary to Rule 4-2 provides that
Occasionally, an agent must be firm with a client. Firmness, without rudeness, is not a violation of the rule. In communicating with the client, the agent may disagree with the client’s perspective or may have concerns about the client’s position on a matter and may give advice that will not please the client, which may legitimately require firm and animated discussion with the client. The agent must not keep the client in the dark about matters they know to be relevant to the retainer.
Rule 4-3 provides that
If it becomes apparent to the agent that the client has misunderstood or misconceived the agent’s position or what is really involved, the agent must use reasonable efforts to explain their advice and recommendations to the client.
CPATA’s Advice
Being honest and candid is at the root of Part 4 of the Code, which sets out the rules with respect to quality of service. Rule 4 requires a licensee to ensure that the client understands the advice they are being given and Rule 4-3 implies that this obligation is ongoing and makes it a positive requirement on licensees to speak to their client if it becomes clear that the client does not understand what is really involved in their matter.
Frank discussions are not always easy. A client may be insistent that they are correct or may not understand the nuances and intricacies of the process or a licensee may put off a tough discussion because they fear it will be unpleasant. Learning how to be direct and have difficult discussions is an important part of a licensee’s toolkit. Seeking advice from mentors or more senior practitioners may help – a licensee can practice what they want to say or get guidance on how best to approach the client.
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. But 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.
We look forward to receiving more inquiries and providing more guidance to licensees. It helps us identify areas where further information or analysis might be instructive and it will help to inform our future consultation on the Code.