Who are you going to call if you have a question about whether your conduct as a patent or trademark attorney is ethical? Many state bars offer “ethics hotlines” to aid their members in their understanding of, and compliance with, their obligations under applicable rules of professional conduct.
Although the USPTO does not advertise a similar type of ethics “help” service, such assistance does exist. In particular, patent and trademark practitioners who have questions regarding their ethical obligations under the USPTO’s Rules of Professional Conduct may contact the Office of Enrollment and Discipline‘s (OED) for free, and anonymous, help.
The OED investigates and regulates the professional conduct of all patent and trademark attorneys and agents practicing before the USPTO. What constitutes “practice before the Office” in either a “patent matter” or a “trademark matter” is broadly defined as encompassing both actual appearances before the USPTO (such as signing filings, interviewing examiners, and otherwise communicating with the Office), and pre-filing or “behind-the-scenes” services (such as preparing a patentability opinion or drafting a trademark application for another without attribution). See 37 C.F.R. 11.5.
Practitioners who have general questions about their ethics obligations under the PTO’s ethics rules are encouraged to call OED at 571-272-4097 and ask to speak with the “Attorney of the Day.” Alternatively, practitioners may send an email message for “Attorney of the Day” help by email message to OED@uspto.gov.
A few things to consider when calling or emailing OED for help:
First, the OED does not (at least according to OED) initiate investigations of individuals simply by virtue of a practitioner contacting OED with an ethics question. For example, OED does not keep a record of those who call or write for “Attorney of the Day” help.
Second, to alleviate concerns that by asking for help, the practitioner may find themselves suddenly the subject of a disciplinary inquiry, practitioners may remain anonymous. If you call the OED’s main number (571-272-4097), you need not disclose your identity–OED will still take your call.
Third, do NOT expect that OED will provide you with a formal ethics opinion. OED does not give “opinions” to practitioners or others. An “opinion” constitutes an application of a specific set of facts to a specific rule or rules to reach an informed conclusion as to whether the conduct described either does, or does not, comply with the USPTO’s Professional Conduct rules.
Fourth, while not offering opinions, the OED may assist practitioners with identifying the specific rule or rules they might wish to consider as being potentially relevant to their inquiry. Often times, the OED “Attorney of the Day” will direct a practitioner’s attention to prior disciplinary decisions posted in the OED’s FOIA Reading Room and potentially other published resources.
The OED has been offering its “Attorney of the Day” help desk for years, even though this free and anonymous service is nowhere mentioned on the USPTO’s website.
The “Attorney of the Day” is usually an OED staff attorney, many of whom have previous patent or trademark experience from private practice, or ethics experience working for another attorney regulatory agency. The “Attorneys of the Day” are quite conversant with the the PTO ethics rules, codified at 37 C.F.R. 11.101-11.901.
For those who use, or have used, the “Attorney of the Day” service before, we would be interested in your feedback–which you may post in the comments. In particular, did you find the service useful? How can it be improved?
Even after receiving guidance from OED’s Ethics Hotline, practitioners who still feel the need to get legal advice regarding past or proposed conduct, risk management, or similar issues can call McCabe & Ali, LLP at Toll-Free: (877) OED-4097.
Unfortunately, they don’t usually call back, and their information can’t be relied upon as legal advice.