The following analysis applies when a licensee is moving from a Class 1 licence to a Class 2 licence. This scenario assumes that the licensee’s withdrawal from client matters is justified under the circumstances, and focuses on what a licensee’s ethical obligations are when they cannot reach a client to notify them of their departure from practice.
The Scenario
A licensee is switching from a Class 1 to a Class 2 licence. They have contacted their client roster to advise of their departure and to advise that it is up to the client to determine their representation going forward. The licensee has transferred files according to their clients’ indicated preferences. There are, however, a handful of files for which the clients, despite best efforts, have not responded.
The licensee is wondering when they can say they have exercised enough due diligence to be able to declare that they have satisfied section 25 of the College Bylaws1.
The Law
Subsection 25(c) of the College Bylaws provides:
A class 1 licensee may apply to the Registrar to change the class of their licence to a class 2 licence if they meet the following requirements:
(c) they provide confirmation in writing
- that all client matters have been completed or that arrangements have been made to the satisfaction of their clients to have their files returned to them or transferred to another class 1 licensee,
- that any matters in progress at the Patent Office or the Office of the Registrar of Trademarks have been assigned to another class 1 licensee and the appropriate office has been advised in writing of the successor licensee,
- of the location of the files from the licensee’s practice
The Rules
The Commentary to Rule 6 sets out what the requirements are for notifying clients of a licensee’s departure. A notice to clients should advise that it is the client’s right to choose representation. If a licensee has arranged for another agent to take over their files, it should be made clear to the client that it is their option to choose whether to have their file transferred to a new agent proposed by the departing licensee (where applicable), to change their representation to an agent of their choosing or to choose to self-represent.
The Code also provides that when an agent withdraws from representation, “the relevant CIPO office, opposing parties, foreign agents and any other directly affected by the withdrawal must also be notified of the withdrawal” (see Commentary to Rule 6).
CPATA’s Guidance
When a licensee has determined their date of departure from practice, the notice sent to clients in accordance with the Commentary to Rule 6 should indicate to the client that if they do not respond, the licensee will be revoking their appointment by X date and the client will need to ensure that CIPO has up to date contact information for them to avoid loss of rights.
Subsection 25(c)(i) provides that “all client matters have been completed or that arrangements have been made to the satisfaction of their clients to have their files returned to them or transferred to another class 1 licensee” [emphasis added]. If the client instructed the licensee to abandon the case, the matter is a completed matter as it relates to their practice, though if the licensee wishes to send a courtesy notice to those clients to advise them of their departure and of any next due dates in their matter, that is up to the licensee.
If the abandonment was inadvertent – for example, the due date was missed because the client failed to instruct the licensee, but the licensee is of the opinion that they are still responsible to track deadlines because the client did not express an intent to abandon – then the matter is likely not completed. If the client fails to respond to the licensee now after their attempts to provide reasonable notice, the licensee would revoke their appointment of agent with CIPO.
Effectively, if a client has not gotten back to the licensee and the licensee has documented good faith efforts to reach them, the licensee need only revoke their appointment of agent with CIPO.
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 invite you to contact us with your ethics questions online.
1 Link “College Bylaws” – https://laws-lois.justice.gc.ca/eng/regulations/SOR-2021-167/FullText.html