Appendix G
The IPIC CODE OF CONDUCT (JULY 2013)
viewed as a "principles" based code compared to the
IPReg (UNITED KINGDOM INTELLECTUAL PROPERTY REGULATION BOARD)
RULES OF CONDUCT FOR PATENT ATTORNEYS, TRADE MARK ATTORNEYS AND OTHER REGULATED PERSONS
The purpose of this exercise is to show how a Canadian code of conduct, if based on the IPIC Code, would look like on a "principles basis." The IPIC Code is already framed with "principles," however it includes "rules" where the IPReg's rules are framed as "guidance".
The following is taken from "Rule 2—Scope" of the IPReg's version.
"…The guidance shown in italics accompanying these Rules is not mandatory and does not form part of the Rules. Nevertheless, any alleged breach of the Rules will be considered with reference to the guidance."
A concern is that if a Canadian IP agent code of conduct is adopted by Parliament, a possibility is that the "principle" becomes statute while the rules become regulations. Even regulations in Canada can take a significant amount of time, energy and will to change. On the other hand, "guidelines" could likely be changed at an administrative level.
Proposed canadian code
Example #1
2. Confidentiality
An agent has a duty to preserve the confidences and secrets of clients except when such disclosure is expressly or impliedly authorized by the client, required by law, by order of a court, or otherwise permitted or required by this code.
Guidelines
- An agent must hold in strict confidence all information concerning the business and affairs of the client or acquired in the course of the professional relationship.
- An agent must exercise reasonable care to ensure the privacy and confidentiality of such confidential information.
- The agent must continue to hold in confidence such information despite conclusion of the matter or termination of the professional relationship with the client.
- An agent must guard against participating in or commenting upon speculation concerning the client's affairs or business even if certain facts are public knowledge.
- An agent must not disclose any confidential information disclosed to the agent concerning a client's business or affairs regardless of its source, other than facts that are a matter of public record.
- When disclosure is required by law or by order of a court, the agent must always be careful not to divulge more information than is required.
- An agent may disclose confidential information to a lawyer to secure legal or ethical advice about the agent's proposed conduct.
Commentary
In order to facilitate open communication between client and agent, it is important that the client feel completely secure that such communication will be held in strict confidence by the agent.
Generally, unless the nature of the matter requires such disclosure, an agent should not disclose having been retained by a person about a particular matter or consulted by a person about a particular matter, whether or not the agent-client relationship has been established between them.
An agent must take care to avoid disclosure to one client of confidential information concerning or received from another client and should decline employment that might require such disclosure.
In some situations, the authority of the client to disclose may be inferred. For example, it is implied that an agent may, unless the client directs otherwise, disclose the client's affairs to partners, associates, administrative staff and other persons in the agent's firm. But this implied authority to disclose places the agent under a duty to impress upon such persons the importance of non-disclosure (both during their employment and afterwards) and requires the agent to take reasonable care to prevent their disclosing or using any information that the agent is bound to keep in confidence.
An agent owes a duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the agent has ceased to act for the client.
Example #2
4. Quality of service
An agent must be both honest and candid when advising clients and must inform the client of all information known to the agent that may affect the interests of the client in the matter.
Guidelines
- The agent must give the client competent advice and service based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the agent's own experience and expertise.
- The agent's advice must be open and undisguised, and must clearly disclose what the agent honestly thinks about the merits and probable results.
- If it should become apparent to the agent that the client has misunderstood or misconceived the position or what is really involved, the agent must use reasonable efforts to explain to the client, the agent's advice and recommendations.
- An agent must reasonably promptly act on the client's instructions and must reply to all client inquiries.
- An agent must take reasonable steps to advise the client of the costs of obtaining or seeking any intellectual property protection in Canada or elsewhere recommended by the agent.
- An agent must communicate in a timely and effective manner at all stages of the client's matter or transaction.
- An agent should not undertake to act for a client if he or she is not comfortable, for justifiable reasons, with undertaking the requested task or job for that particular client or he or she does not agree with the instructions from the client to such an extent that the instructions will impair the agent's ability to perform his or her services in accordance with this code.
- An agent must reasonably promptly inform the client of any material error or omission with respect to the client's matter.
Commentary
Occasionally, an agent must be firm with a client. Firmness, without rudeness, is not a violation of the rule. In communicating with the client, the agent may disagree with the client's perspective, or may have concerns about the client's position on a matter, and may give advice that will not please the client. This may legitimately require firm and animated discussion with the client. The agent must not keep the client in the dark about matters he or she knows to be relevant to the retainer.
An agent has a duty to communicate effectively with the client. What is effective will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions.
An agent should provide to the client in writing, before or within a reasonable time after commencing a representation, as much information regarding fees and disbursements as is reasonable and practical in the circumstances, including the basis on which fees will be determined. An agent should confirm with the client in writing the substance of all fee discussions that occur as a matter progresses, and an agent may revise an initial estimate of fees and disbursements.
The requirement of conscientious, diligent and efficient service means that an agent should make every effort to provide timely service to the client. An agent should meet deadlines, unless the agent is able to offer a reasonable explanation and ensure that no prejudice to the client will result. Whether or not a specific deadline applies, an agent should be prompt in prosecuting a matter, responding to communications and reporting developments to the client. In the absence of developments, contact with the client should be maintained to the extent the client reasonably expects.
When, in connection with a matter for which an agent is responsible, an agent discovers an error or omission that is or may be damaging to the client and that cannot be rectified readily, the agent must:
- promptly inform the client of the error or omission without admitting legal liability;
- recommend that the client obtain independent advice concerning the matter; and
- advise the client of the possibility that, in the circumstances, the agent may no longer be able to act for the client.