The following analysis applies when a licensee becomes aware of another agent’s conduct, which, in the licensee’s reasonable opinion, raises a serious question of whether the agent is in breach of the Code of Professional Conduct. The analysis focuses on the question of when a licensee may have a duty to report another agent’s conduct to CPATA.
The Scenario
A licensee overhears another patent agent boasting at an industry event about their involvement with a client and their innovative new start-up. When others at the event ask questions about the start-up, the agent goes into some detail about the new technology, sharing details about why it is so ground-breaking. The client’s application is only in the draft stage, and nothing has yet been filed with CIPO. The agent then shares that it as part of his business plan to attract first-time inventors who have no experience with how the patent application process works, he tells them he will reduce his fees in exchange for a 50% share in the patented invention, as long as they ‘keep it confidential’.
The Rule
The Code provides that
An agent must report to the College any conduct of which the agent has personal knowledge and which in the agent’s reasonable opinion, arrived at in good faith, raises a serious question of whether another agent is in breach of this Code (Rule 7-5).
Part 2 of the Code states that agents have “a duty to preserve the confidences and secrets of their clients” and the Commentary to Rule 2 of the Code states:
[g]enerally, unless the nature of the matter requires such disclosure, an agent must not disclose that they have been retained by a person about a particular matter or consulted by a person about a particular matter, whether or not an agent-client relationship has been established between them.
Part 3 of the Code deals with conflicts of interest, and provides in the Principle:
In each matter, an agent’s judgement and loyalty to the client’s interest must be free from compromising Influences.
The Commentary to Rule 3 provides that an example of a conflict of interest is
an agent, an associate, a firm partner or a family member having a personal financial interest in a client’s affairs or in a matter in which the agent is requested to act for a client such as a partnership interest in a joint business venture with a client.
Our Advice
There are two components to a licensee’s duty to report under Rule 7-5:
- The licensee has personal knowledge of the conduct; and
- In the licensee’s reasonable opinion, arrived at in good faith, the conduct raises a serious question of whether the agent is in breach of the Code [emphasis added].
If a licensee has:
– personal knowledge (i.e. didn’t overhear it from someone else),
– that another agent’s conduct raises a serious question (i.e. what is the potential extent of harm? Has the breach been cured to the client’s satisfaction? Is it a one-time occurrence or part of a pattern of problematic conduct?, etc.),
– a good faith belief (e.g. not clouded by personal animosity),
– that the conduct may have resulted in a breach of the agent’s ethical duties to their client (see the Rules referenced above in this case, for example),
then the licensee has an obligation to report that conduct to CPATA under Rule 7-5 of the Code.
Licensees must keep the confidence of their clients, even at an industry event or in their conversations with colleagues. The expectation of confidentiality in the Code is broad and extends even to knowledge an agent acquires through a more informal consultation, where an agent-client relationship has not necessarily been established. Breaching confidentiality can cause irreparable harm to a client’s IP interests and rights.
If the Licensee personally hearing of this likely breach of confidentiality was in doubt about whether to report the agent to CPATA, when then learning of the highly questionable and likely harmful and unethical business plan of the agent, the Licensee should feel confident that this situation should be reported, to protect the public interest and the reputation of the IP profession as competent and ethical professionals.
This duty to report the conduct of a colleague extends to all of the ethical obligations found in the Code. For example, a licensee may find themselves in a situation where they have personal knowledge of a conflict of interest or an inappropriate withdrawal of services by another agent. Another example could be where a licensee had personal knowledge that an agent had sexually harassed a colleague or a client in the course of their practice and/or that an agent regularly makes disparaging comments about women and transgender people. These examples could trigger the duty to report if the above two conditions are met: that the licensee has personal knowledge of the conduct, and that it is the opinion of the licensee, arrived at in good faith, that the conduct raises a serious question that there may have been a breach of the Code.
It is important to keep in mind that reporting a colleague will not amount to an automatic suspension or revocation of their license. Most licensees have a difficult time both evaluating whether a matter should be reported and worrying about the possible consequences for themselves and/or the agent being reported. CPATA takes a principled and proportional approach to conduct concerns, which starts with understanding all relevant facts and considering educational or informal ways to avoid future breaches, rather than punishment. Licensees can use CPATA’s Agent Conduct Inquiry process, or the Ethics Inquiry process to discuss their concerns and get help assessing whether a matter needs to be reported in the public interest.
Ultimately each Licensee has to decide what the correct course of action is in order to adhere to their professional obligations. Every circumstance is unique and it is up to the licensee to exercise their own professional judgement. Through the Ethics Inquiry process, we are happy 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 consultation on the Code, which will be rolling out in early 2023.
If you are a licensee with a question regarding professional conduct and your responsibilities under the Code, fill in our Ethics Inquiry Form.