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Rule 1 – Competence – how the competence rules may require honest self-reflection about whether the licensee has the expertise needed to accept the file

Patent Agents and Trademark Agents provide expert intellectual property services. The profession plays an important role in driving innovation and stimulating Canada’s economic growth. Licensees undergo a rigorous process to join this profession. Many are entrepreneurs themselves. It can be difficult to acknowledge then, that for certain retainers, a licensee might just not have the requisite expertise to accept the file.  

The following analysis is a look at the competence rules in the Code of Professional Conduct (the “Code”), but, more than that, it is an exploration of what the competence rules may require of licensees – honesty and the ability to self-assess as to whether they have the expertise truly required.  

The Scenario

The Code provides that licensees owe their clients a duty to be competent in their service delivery. The following rules and guidance set out the sort of reflection a licensee should undertake prior to being retained to ensure that they are able to provide services that align with their ethical obligation of competence to their clients.  

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. 

Rule 1-2 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. 

The Commentary sets out some of the factors taken into account in determining whether a licensee has employed the requisite degree of knowledge and skill which include: 

(a) the complexity and specialized nature of the matter;  

(b) the agent’s general experience;  

(c) the agent’s training and experience in the technical field and applicable patent and trademark law;  

(d) the preparation and study that the agent was able to dedicate to the matter; and  

(e) whether it would have been appropriate or feasible to refer the matter to, or associate or consult with, an agent of established competence in the field in question. 

CPATA’s Guidance

A licensee should evaluate their competence for each new file they receive. There may be matters for which a licensee should decline to act – for example, if they do not have the requisite expertise to do so. A licensee evaluating their competence may require them to have an understanding of their own knowledge base and an appreciation of the limits of their own expertise. This may require self-reflection, honesty, and a bit of humility.  

A licensee may also keep in mind that they do not have to turn down a file for which they are not yet competent if they ask for the consent of the client to take the time to become competent, provided that it is not at the expense of the client and does not prejudice the client; or if they ask for the consent of the client to consult with and/or retain the services of another agent who is competent.  

In any event, a licensee should have the ability to recognize when they do not have the requisite expertise to assist on a file and should ensure that they are always considering the best way to preserve the clients’ interests and be placing the clients’ interests over their own.  

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 online. 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.