Court Sanctions in Litigation Lead to OED Reprimand

I often tell people that the OED believes it has far greater jurisdiction than a practitioner might think, and here's another anecdote:  lawyer messes up in litigation (gets sanctioned) and the CAFC criticizes his brief as containing misleading statements.  

What's that got to to with practice before the Office, which is the OED's purview?  Nothing, in my view, but the OED, once again, came after the lawyer for conduct prejudicial to the administration of justice.  The opinion is here (an agreed public reprimand). 

I've seen this in various forms. Be careful out there.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

8 thoughts on “Court Sanctions in Litigation Lead to OED Reprimand

  1. 7

    Re-read what I said: “…subject agents to the bar rules of the state in which they practice…”

    Or don’t subject them to any rules other than whatever rules tort law imposes on them in the state in which they practice.

  2. 5

    Why is there an OED? The PTO makes it easy for people to commit fraud on the office and says it doesn’t have jurisdiction over the fraudsters who aren’t registered practitioners, then has the OED go after conscientious practitioners for issues unrelated to their conduct before the PTO? Just get rid of the OED, subject agents to the bar rules of the state in which they practice, and be done with the matter.

  3. 4

    Yup, “practitioner” reaches patent agents, lawyers who do TM, and lawyers registered to do patent work.

    I am, sometimes I must say happily, not one of any of those!

  4. 3

    Also interesting here that the attorney being disciplined in this case is not a registered patent attorney but instead one who has – at times – represented parties in trademark prosecution.

  5. 2

    Let me be clear: if a lawyer is DISCIPLINED for conduct by a state, then under well-settled principles, reciprocal discipline by the OED would be appropriate. But, the fact that a lawyer violated, let’s say, Rule 11 in federal court does not ipso facto mean he should be disciplined by the PTO. Among other things, the client’s conduct may have caused the sanction. Further, the OED has to show a violation of its rules to discipline a lawyer (so long as it’s not reciprocal). Thus, a patent lawyer litigating a car wreck case has to apply the PTO’s rules to his conduct?

    Trust me, there’s a hornet’s nest there.

    In any event, when it adopted the 1985 rules, it emphasized — over and over again — that it did not and could not do what it is now doing…

  6. 1

    There is room for debate as to whether the USPTO OED should discipline patent attorneys for activities not bearing directly on practice before the USPTO, but one possible rationale for doing so is to bring public attention to potentially unscrupulous attorneys (or agents). It has been theorized that only a relatively small percentage of misconduct is actually reported to disciplinary authorities. Given that theory, if a practitioner is found to have engaged in one instance of misconduct, it seems plausible that additional instances of unreported misconduct involving the same practitioner may exist and/or that the practitioner may be more likely to engage in other unscrupulous conduct.

    Consider another example of a U.S. patent attorney named Allen Brufsky who was disciplined by the USPTO OED for litigation misconduct:

    Mr. Brufsky was recently disbarred in Florida:
    link to

    According to media reports, the same attorney was also the subject of an incredibly bizarre dispute unfolding in the Florida courts:
    link to
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    The same attorney was also disciplined in Alabama:
    link to

    There are also indications that disciplinary proceedings have been instituted against the same attorney in New York and Maryland.
    link to

    I am not saying that the OED policy of disciplining practitioners for activities unrelated to representation of clients before the USPTO is right or wrong, but there may be a public benefit in drawing attention to potentially unscrupulous practitioners.


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