Someone reached out to me and pointed out that Gene Quinn over on ipwatchdog is quite upset by the fact that there is no code of judicial ethics specific to PTAB judges and the like. His latest article, of many, is here. That’s a good idea.
There should be a specific and distinct set of ethical rules applicable to them. I’m not sure there isn’t one already. 28 USC 455 applies to all federal judges, including somewhat analogous magistrates, and could be interpreted to extend to them. (I doubt it, but I haven’t researched it.) If it doesn’t, the USPTO could by regulation (or internal operating procedure, perhaps) simply adopt the language of Section 455 and get this done. And it should.
Mr. Quinn goes on at length about alleged personal unethical conduct, and makes some sharp accusations and personal attacks that I don’t want to leave any impression that I agree with.
But some of his accusations arise from his belief about legal ethics or federal law that go directly to the idea of the substance of a code and so I’ll touch on those limited ones, and only some of those. For example, Mr. Quinn writes “there is no time limit on a duty to a former client, at least if you are a patent practitioner. So the 1-year recusal period is wholly without precedent and inappropriate for PTAB judges.” Likewise, Mr. Quinn states that federal law governing Article III judges “has specific provisions that would seem to absolutely prohibit a judge from handling a case where a litigant is a former client.”
Neither argument should be taken seriously in crafting a PTAB code.
With respect to lawyers, pretty much every jurisdiction recognizes there is a “time limit” (as he puts it). It works this way: I can be adverse to a former client if information I learned from the former representation has become generally known or has become “stale.” So there is a “time limit” of sorts, by rule in most jurisdictions and in case law in others so far as I know.
As for judges, there is no prohibition against a judge ever adjudicating a dispute involving even a former client the lawyer personally represented. No, the federal statute regulating Article III judges (and magistrates) (28 USC 455) and the Code of Judicial Conduct don’t state some minimum amount of time that must pass after a lawyer represents a client before she can judge a dispute involving that former client. But, with the federal judiciary, two years seems to be the outside long “norm” for a judge to wait before adjudicating cases involving former clients the judge actually and personally represented. See, e.g., Sphere Drake Ins. Ltd. v. All Am. Life Ins. Co., 307 F.3d 617, 621-22 (7th Cir. 2002) (“The norm among new appointees to the bench is that once two years pass, perhaps even earlier, a judge is free to sit in controversies involving former clients”) (emph. added)).
My point is that having a set of rules specific to adjudicative officials is probably a good idea. I do hope the USPTO takes the idea to adopt a set of rules applicable to adjudicative officials seriously, both to encourage confidence in the system and to avoid subjecting officials to criticism unanchored to a well-known standard like Section 455.