How Things Snowball: The Consequences of Violating a Rule

By David Hricik, Mercer Law School

Being disciplined by the USPTO, a state bar, or being sanctioned by a court is, of course, not a good thing for a lawyer and in some instances it can end a career or sharply limit one.  Over the past 30 or so years, I’ve seen a lot of somewhat unpredictable consequences flow from discipline or a finding of misconduct by a court.

For example, the USPTO requires practitioners to update their addresses and, from time to time, it has sent letters to the current address and if the recipient doesn’t respond within (I think it is) a month, the practitioner is “administratively suspended.”  If that happens, not a huge deal to correct, but some state bars require reporting administrative suspensions, and if a practitioner fails to do that, then the practitioner has two problems. And, if practitioner later “covers up” either thing, well, then three problems.  (I wrote an article a while back called “how things snowball” and it came to mind just now).

This post is inspired by a recent filing, a typically mundane request to be admitted pro hac vice.  In it, the lawyer stated he hadn’t been subject to discipline but in fact, he had. Four times, over about 40 years.  According to a corrected request, the original request had been made by his office mistakenly over his signature, and that is why the four had been left off.  The order from the court asking opposing counsel if, now, they wished to oppose the motion to admit is here.  Different courts have different approaches to signing by permission and non-lawyers can’t do certain things, so will the explanation as to the original mistake now snowball into something else?  Will the judge find the “four priors” matters? The omission? I have no idea and it sounds as if a mistake was made and promptly corrected, but, things can snowball.

And, as the final example, if you haven’t read the California Supreme Court case vacating a $3m fee awarded to a firm because it had an undisclosed conflict of interest (and, as a consequence of not disclosing the conflict, (a) its arbitration agreement with the client was unenforceable and (b) it also might have had to disgorge more than the $3m award), it’s blogged below.

There are lots of ways that a violation — even at times a technical one — can snowball into something much worse — privilege waiver for unauthorized practice of law, in-house counsel failing to follow “in-house registration” statutes leading to discipline or loss of privilege, and more.

I think it is from Hill Street Blues:  “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.

2 thoughts on “How Things Snowball: The Consequences of Violating a Rule

  1. 1

    This is somewhat off topics to the original post, but the above discussion of failure to report a disciplinary issue raises to my mind a question that has been kicking around of late. ABA model rule 8.3(a) provides that “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority” (emphasis added). This same rule is embodied in the PTO’s 37 C.F.R. §11.803.

    That “shall” means that the duty to report is not optional. If lawyer A knows that layer B has committed an ethical violation, then A must report B. Failure of A to report B constitutes a violation by A. If C sees A’s failure to report B, then C must now report A, or else C’s silence constitutes a violation (here we come, again, to the snowballing mentioned in the original post).

    What, however, if B is an anonymous participant on an internet chat board? Imagine, for example, that B post’s under an internet sobriquet, but holds himself out as being a member of the patent bar. If A witnesses B’s violation of (e.g.) Model Rule 8.2(a), but A does not know B’s real identity, does A still have a duty to make a report to the PTO?

    1. 1.1

      What, however, if B is an anonymous participant on an internet chat board?

      Greg,

      I have raised this point several times previously.

      In fact, during one of the “let’s have a nice ecosystem” threads over on the main blog, I found out that Prof. Crouch knows exactly who each of the main posters are (including especially Malcolm Mooney), and I pointed out this specific ABA model rule. Now, whether or not the Professor abides by those model rules (or needs to abide) is a fair question, but for the sake of argument, either way does not allow the impact of anonymity to provide cover (the ABA recently had a case explicitly pointing out anonymity is not such a cover, on a case in which the attorney was commenting — anonymously — on his own active case).

      As to your (somewhat lesser) question, one who does not know that identity cannot report with enough specificity to the bar. So, third parties to the blog are not “on the hook” as your question implies.

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