As an expert in the legal profession, I have seen my fair share of misconduct among attorneys. This refers to any behavior that violates the professional rules of conduct, such as breaching client confidentiality, engaging in conflicts of interest, making false statements, or failing to effectively communicate with clients. One term that often comes to mind when discussing unethical lawyers is 'ambulance chaser'. This refers to an attorney who aggressively and unscrupulously pursues accident victims.
It is widely considered unethical for lawyers to directly approach accident victims or have their employees do so, as these individuals are often in a vulnerable state. Lawyers should not have to actively seek out clients. Cases involving legal negligence are complex and often involve one case within another. This is because a person typically files a lawsuit against their former lawyer for something that occurred during the underlying case. In order to prove legal malpractice, the individual must show that the lawyer failed to do something or did something wrong, resulting in a less favorable outcome in the underlying case. While ethical violations can sometimes form the basis for legal malpractice, this is not always the case.
Legal malpractice is based on professional negligence, which requires the individual to prove that the attorney breached a specific standard of care and that this breach caused them damages. The applicable standard of care will vary depending on the type of case, legal issues involved, and the specific attorney being sued. The American Bar Association's (ABA) model rules state that “the relative autonomy of the legal profession entails special responsibilities of self-government.” This means that the legal profession has a responsibility to ensure that its regulations are designed for the public interest and not for the benefit of individual lawyers or bar associations. Each attorney is responsible for complying with the Rules of Professional Conduct. This means that even if an attorney is excellent at their job, they can still face suspension or disqualification for violating the law. Convictions for any serious crime, as well as any behavior that negatively impacts a lawyer's honesty, character, or integrity, can result in professional disciplinary action.
The Bar Association not only regulates the quality of an attorney as a client's representative, but also takes action against illegal, dishonest, or other conduct that tarnishes the image of the legal profession. As reported in this blog, the United States Patent and Trademark Office has suspended or disbarred professionals for various types of “private misconduct”, including domestic violence, application fraud, and failure to pay alimony or taxes. Ethical standards also cover behaviors that may be legal but still subject to significant professional discipline. One example is a “simple mistake”. The ethical stance on what constitutes a simple mistake can vary greatly.
Obviously, no one is going to jail for a simple spelling error. However, what if that error caused a client to miss a non-extendable filing date, resulting in the loss of valuable patent rights? This is where things become more complicated. The Office of Registration and Discipline (OED) of the USPTO has imposed significant disciplinary measures against patent and trademark professionals whose “simple mistakes” resulted in the loss of clients' patent rights. For instance, in In re Brufsky, a patent attorney was suspended for several years because his staff incorrectly determined that the client was responsible for paying maintenance fees. In another case, In re Druce (which is examined here), a partner at an intellectual property company was sanctioned for not properly supervising a legal assistant. While these actions may seem like simple errors, they are not considered ethical behavior by the OED.
A Colorado bar association issued an ethical opinion on whether legal but unethical conduct, such as an error, could still result in disciplinary action. As stated in the opinion, “professional errors exist across a spectrum”. At one end are errors that “are likely to harm a client's right or claim”, such as missing a filing deadline or failing to provide proper notification. At the other end are errors that may not cause harm to the client, either because the resulting harm is not reasonably foreseeable or because the lawyer takes corrective measures to prevent it. USPTO professionals have a duty to keep their clients “reasonably informed” about the status of their case.
This includes informing them of any decisions or circumstances that require their informed consent. The duty to keep clients informed also means disclosing any significant developments in the case, including adverse events caused by the attorney's own error. Once again, violations of these rules, even if they stem from legal conduct, can result in professional disciplinary action. This can include multiplying procedures, failing to present evidence, not returning calls, putting security at risk, and failing to properly supervise staff. Even seemingly minor mistakes can have serious consequences for both the client and the attorney.