Notice regarding new Bylaws
On May 1, 2023, CPATA’s new Bylaws came into force. The Bylaws introduced a new class of licence: Class 4, and changes were made to the Class 2 licence category. With these changes, the rules with respect to what is required of licensees when they wish to move from a Class 1 licence to a Class 2 or Class 4 changed to reflect these changed and new categories.
The following ethical analysis has been updated to reflect the new Bylaws. This ethical analysis provides considerations for any agent who is considering changing their licence class and is instructive with respect to some of the ethical considerations that should be taken into account when withdrawing from client matters when moving out of the Class 1 licence category.
The following analysis applies when a licensee is moving from a Class 1 licence to a Class 2 or Class 4 licence. This scenario assumes that the licensee’s withdrawal from client matters is justified under the circumstances in accordance with section 6 of the Code of Professional Conduct (the “Code”)1 , and focuses on what a licensee’s ethical obligations are in terms of notifying CIPO of their departure and what to do 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 or a Class 4 licence. In accordance with the Commentary in the Code to Rule 6, 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 paragraphs 46(1)(d) or 50(1)(d) of the College Bylaws2.
The Law
Subsection 46(1)(d) of the College Bylaws provides:
A class 1 licensee who wishes to obtain a class 2 licence must submit an application to the Registrar that contains the following information:
…
(d) confirmation of the following:
(i) that they have completed all client matters or made arrangements to the satisfaction of their clients to have the clients’ files returned to them or transferred to one or more licensees whose class of licence permits them to proceed with the file or files being transferred,
(ii) that they have assigned any matters in progress at CIPO to one or more licensees described in subparagraph (i) and advised the appropriate Office of CIPO in writing of the name of the successor licensee or licensees, and
(iii) the location of any of their files that are not returned to the clients or transferred as described in subparagraph (i).
Subsection 50(1)(d) of the College Bylaws provides:
A class 1 licensee or class 2 licensee who wishes to obtain a class 4 licence must submit an application to the Registrar that contains the following information:
…
(d) confirmation of the following:
(i) that they have completed all client matters or made arrangements to the satisfaction of their clients to have the clients’ files returned to them or transferred to one or more licensees whose class of licence permits them to proceed with the file or files being transferred,
(ii) that they have assigned to one or more licensees described in subparagraph (i) any matters in progress at CIPO and advised the appropriate Office of CIPO in writing of the name of the successor licensee or licensees, and
(iii) the location of any of their files that are not returned to the clients or transferred as described in subparagraph (i).
The Rules
The Commentary to Rule 6 in the Code 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 they must appoint a successor agent and include wording to the effect of, if the client does not respond, the licensee will consider the matter closed, will revoke their appointment of agent 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.
Some clients may not respond because they consider their matter complete. Subsection 46(1)(d) provides that the licensee must confirm “(i)that they have completed all client matters or made arrangements to the satisfaction of their clients to have the clients’ files returned to them or transferred to one or more licensees whose class of licence permits them to proceed with the file or files being transferred” [emphasis added]. If the client instructed the licensee to abandon the matter, it is now a completed matter as it relates to the licensee’s 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 as described above, the licensee would revoke their appointment of agent with CIPO on the date they indicated to the client in their notice.
Effectively, if a client has not gotten back to the licensee and the licensee has documented good faith efforts to reach them, the licensee needs to revoke their appointment of agent with CIPO to complete the matter and comply with 46(1)(d)(i) and 50(1)(d)(i) of the Bylaws.
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 For more information about the circumstances under which withdrawal is justified, please see https://cpata-cabamc.ca/en/your-practice/professional-conduct/ethical-analyses-and-guidance-old/rule-6-withdrawal-of-services-when-surrendering-a-licence/
2 Link “College Bylaws” – https://laws-lois.justice.gc.ca/eng/regulations/SOR-2021-167/FullText.html