USPTO Trying Out Diversion Program for Struggling Practitioners

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By Joan C. Rogers

A new program at the U.S. Patent and Trademark Office offers struggling practitioners who commit some ethical lapses a chance to avoid discipline by taking affirmative steps to rectify the underlying issue that caused the misconduct.

The agency’s Office of Enrollment and Discipline (OED) is launching a two-year pilot diversion program for patent and trademark practitioners who commit minor misconduct without causing actual client harm, the USPTO announced Nov. 3.

The new program is in keeping with an increasing focus on the legal profession’s mental and physical well-being. It also aligns the USPTO with national trends in the arena of lawyer discipline and wellness.

More than 30 jurisdictions allow for complaints involving lesser misconduct to be handled through a diversion program that provides an alternative to discipline, according to the 2015 ABA Survey on Lawyer Discipline Systems.

Reaction to Study Findings

William R. Covey, the OED’s deputy general counsel and director, told Bloomberg Law the impetus for adopting the diversion program was a recent study that found alarmingly high levels of problem drinking, substance abuse, and depression among American lawyers.

The landmark study conducted by the ABA and the Hazelden Betty Ford Foundation revealed that 21 percent of practicing lawyers qualify as problem drinkers and 28 percent struggle with depression.

Covey said that when he heard about the study findings at a conference for bar counsel, “those numbers hit me hard” and led the OED to explore how to help patent and trademark practitioners who get in trouble due to these substance use and/or mental health issues.

A recent report from the National Task Force on Lawyer Well-Being suggests diversion programs as one tool for helping lawyers recover and get back on track, he noted.

There are about 34,000 registered patent attorneys and 11,000 patent agents, and the OED also has disciplinary jurisdiction over an estimated 20,000 lawyers who handle trademark matters, according to Covey.

Covey said the OED won’t reserve the new diversion program for only rare situations. It’s conceivable that 8 to 10 percent of the people who might otherwise face disciplinary action may be eligible to participate, he said.

Second Chance

Attorney Michael E. McCabe Jr., who represents patent and trademark lawyers in ethics and disciplinary matters, is enthusiastic about the new diversion program. He practices with McCabe Law LLC and discussed the new diversion program in a post on his blog for intellectual property attorneys.

“I applaud the USPTO,” McCabe told Bloomberg Law. “This is kind of a nationwide blessing to the concept of diversion programs,” he said.

The program will give the USPTO a valuable tool to accomplish its objectives while also providing a second chance for lawyers whose addiction or practice management problems lead to minor misconduct, McCabe said.

Like Covey, McCabe emphasized the ABA/Hazelden study findings on lawyer substance abuse and mental health issues. It was an eye-opener for attorney regulators to discover the extent of those problems, he said.

The diversion program can put lawyers suffering from addiction or mental health issues on the path to resolve the root cause of misconduct rather than winding up with the stigma of discipline, McCabe said.

However, the new diversion program isn’t a “get out of jail free” card for everyone who could face disciplinary charges, McCabe said. Some misconduct will be too severe to qualify for the program even if the underlying cause is addiction, he noted.

Criteria for Participating

The criteria for participating in the pilot program will initially be based on the ABA Model Rules for Lawyer Disciplinary Enforcement, but may be tweaked along the way.

While the program is geared to help people with health issues or faulty office practices, practitioners may qualify to participate even if their misconduct isn’t linked to those types of problems.

Practitioners can’t participate if they’ve been publicly disciplined in the past three years. Also, they can’t take part if the misconduct (1) involves misappropriation of funds or dishonesty, deceit, fraud, or misrepresentation; (2) results in substantial prejudice to anyone; (3) constitutes a serious crime; or (4) is similar to misconduct that led to discipline within the past five years.

Once the OED determines that the practitioner and the particular misconduct are eligible, the office will consider several other factors in determining whether diversion is appropriate.

Participating practitioners will enter into an agreement with the OED requiring remedial measures to correct the issue that led to the misconduct.

A practitioner’s participation in the diversion program will be confidential so the information won’t be public, Covey said.

Also, the OED takes the view that participation in the program doesn’t constitute discipline for purposes of triggering a reporting requirement in the lawyer’s licensing jurisdiction, although participating practitioners should familiarize themselves with the specific reporting requirements in any jurisdiction where they are licensed, Covey said.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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