The OED Takes a Literal View of Earning Nunc Pro Tunc Suspension

Ethics

By David Hricik, Mercer Law School.

In In the Matter of Gitler (Proc. No. D2019-48), a patent lawyer was suspended for 90 days by Virginia on May 8, 2019. The District of Columbia and New York also suspended the practitioner. The practitioner notified the OED of his Virginia suspension on May 29, 2019, and, while agreeing reciprocal suspension by the USPTO was proper, requested it be ordered nunc pro tunc — so it would have run with the Virginia suspension.  The OED declined that request.

Significantly, the OED took a very technical and literal reading of the provisions governing nunc pro tunc orders.

First, the rule requires practitioners to withdraw from pending cases. He had told his clients he was not representing them but his name was still associated with a customer number and so they were handling the matters. The OED stated this did not excuse his failure to withdraw.

Second, the rule requires the practitioner to notify other states where the practitioner is licensed of suspension:  while he had notified D.C., of the Virginia suspension, he had not notified New York: it had received notice.  Thus, the Office seemed to require the practitioner to give notice to a jurisdiction already aware of the facts!

Finally, third, the rule requires practitioners who want nunc pro tunc suspension to take “necessary and appropriate steps” to remove attorney advertising, but he mistakenly had left his bio on the firm’s web page, and it stated that he was registered before the Office. The court stated that leaving this up indicated an unreasonable failure.

 

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.

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2 thoughts on “The OED Takes a Literal View of Earning Nunc Pro Tunc Suspension”

  1. 2

    I suspect that Gitler will eventually file a Bivens cause of action for 5th Amendment due process violations in Federal court against the OED officials to get this matter settled. I don’t understand why OED would want to get sued over such a matter. I wish I knew more regarding the nature of the suspension.

  2. 1

    One clarification to make after reading the order: it looks like the literal reading was by the USPTO Director, not OED. I didn’t see any indication either way how OED thought about it.

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