Washington DC
06 November 2017
Reporter: Barney Dixon

USPTO launches diversion pilot for minor misconduct

The US Patent and Trademark Office (USPTO) has launched its two-year diversion pilot programme, giving practitioners who engaged in minor misconduct under specific circumstances the opportunity to avoid formal discipline by taking remedial measures.

Implemented by the USPTO’s office of Enrollment and Discipline (OED), the programme will be available to patent and trademark practitioners whose physical, mental or emotional health issues—including substance or alcohol abuse—as well as practice management issues, resulted in minor misconduct and little harm to a client.

The USPTO said the programme will help the OED “accomplish its mission of protecting the public from practitioners who fail to comply with the USPTO’s standards for ethics and professionalism”.

Joseph Matal, who is currently acting under secretary of commerce for intellectual property and director of the USPTO, said: “We’re hopeful that this pilot program will align our agency with best practices established in other states, while allowing practitioners a fair chance to rectify previous misconduct and allow them to move forward in a productive manner.”

Intellectual property and ethics lawyer, Michael McCabe, said in a blog post on his website that the programme is a “welcome response to the growing epidemic of drug and alcohol abuse among members of the legal profession”.

McCabe, who recently launched a law firm dedicated to representing trademark and patent attorneys in OED disputes at the USPTO, explained that the OED’s programme comes at a “critical time period in the legal profession”.

He said: “Disciplinary counsel across the US have increasingly come to recognise that the profession has a serious problem with drug and alcohol abuse … lawyers suffer from alcoholism and drug addiction at a rate that is grossly disproportionate to the rates of addiction in other professions and in the general population.”

According to McCabe, traditional attorney disciplinaries focus on protecting the public by punishing the lawyer, including licence suspension and reprimands.

But, he argued that drug and alcohol abuse, as well as mental health issues, can play a significant role in cases involving the violation of professional conduct.

McCabe explained: “The idea behind diversion is to treat the root cause by taking the practitioner out of the realm of the disciplinary system. It is hoped that by focusing on getting practitioners the proper medical care and treatment, both the public and the bar will benefit.”

McCabe's blog can be read here.

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