Overview

The Professional Standards Board for Patent and Trade Marks Attorneys is responsible for investigating and prosecuting complaints against registered attorneys.  The Board is able to act on information from any source, including a complaint from a member of the public.

The Code of Conduct (PDF) for Patent and Trade Marks Attorneys (the Code) applies to all registered patent and trade marks attorneys including those employed in companies undertaking the business of the company.  The Code helps attorneys and their clients to understand the conduct expected of an attorney.

An attorney who does not comply with the Code may be subject to disciplinary proceedings.

General information about making a complaint against a patent or trade marks attorney is set out below.  Further information about the disciplinary process is set out in the Discipline Procedures Guidelines.

Complaints

If you have a grievance with an attorney, you should first attempt to settle the issue directly with the attorney concerned.

If this fails you should contact the Secretary, Professional Standards Board for Patent and Trade Marks Attorneys (see contact details at the bottom of this section) to discuss the complaint and seek advice on how to progress the matter.

Disputes between patent and trade marks attorneys and their clients tend to fall into two categories:

• Disputes in which there is evidence that the attorney has acted inappropriately; and
• Disputes in which the client has not achieved their objectives, or there is a dispute over costs, unpaid bills or other related aspects of the relationship.

The Patents Regulations 1991 set out a discipline regime to deal with those cases where an attorney has acted inappropriately.  Penalties relate solely to discipline of the attorney, such as suspension or cancellation of an attorney’s registration.

The discipline regime does not provide an opportunity to obtain damages for losses resulting from an attorney's behaviour.  Claims seeking restitution for overcharging or failure to perform services, compensation for damage or for loss of profits, or the return of documents, need to be pursued in other forums.  The Board is currently exploring alternate dispute resolution processes such as mediation to deal with these types of matters.

The Institute of Patent and Trade Mark Attorneys of Australia through its Ethics and Disputes Committee, considers complaints made to the Institute against any of its members. This regime is independent of the formal provisions included in the regulations and sanctions apply only to the Institute membership.

How do I make a complaint?

Complaints should be made to the Professional Standards Board for Patent and Trade Marks Attorneys and addressed to:

The Secretary
Professional Standards Board for Patent and Trade Marks Attorneys
PO Box 200
WODEN ACT 2606

When making a complaint, you should provide as much information as possible, such as your name and contact details, the name and address of the registered attorney and the nature of the complaint.  Where possible, provide supporting evidence such as documents and statements.  You should provide this information in writing.

The Board wants to ensure that people are not discouraged from providing information concerning possible disciplinary offences.  Some people may not wish their names to be revealed to the attorney or to other parties, at least at the outset.  These requests will be respected and confidentiality guaranteed so far as the law allows.

Grounds for complaints

A complaint or information on the behaviour of an attorney may be provided to the Board on the grounds that an attorney:

• has breached the Code of Conduct;
• has engaged in professional misconduct or unsatisfactory professional conduct;
• was unqualified at the time of registration, or
• has obtained his or her registration by fraud.

Professional misconduct means:

• unsatisfactory professional conduct that involves a substantial or consistent failure to reach reasonable standards of competence and diligence; or
• any other conduct, whether occurring in connection with practice as an attorney or otherwise, that shows that the attorney is not of good fame, integrity and character; or
• any contravention of a law that is declared by the Regulations to be professional misconduct.

Unsatisfactory professional conduct includes conduct, in connection with practice as a registered attorney, that falls short of the standard of competence, diligence and behaviour that a member of the public is entitled to expect of an attorney.

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What happens when I lodge my complaint

Once a complaint has been filed, the Secretary of the Professional Standards Board will inform the attorney and invite an initial response.

The Secretary will then provide a written report to the Board setting out the details of the complaint and any initial response from the attorney.

The Board has a statutory responsibility to investigate possible instances of professional misconduct and unsatisfactory professional conduct by registered attorneys.  Where the Board believes that allegations against an attorney raise the possibility of unsatisfactory professional conduct or of professional misconduct it will conduct a formal investigation.

You may be contacted during this process to provide further information.
Following the investigation, if the Board is satisfied that there is a reasonable likelihood of the attorney being found guilty, the Board will start prosecution before the Disciplinary Tribunal.

You may ask the Board to notify you of the outcome of any investigation.
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Proceedings before the Disciplinary Tribunal

The Patent and Trade Marks Attorneys Disciplinary Tribunal (the Disciplinary Tribunal) is established under the Patents Regulations 1991.  The Professional Standards Board commences disciplinary proceedings by way of a notice given to the Disciplinary Tribunal.  The Board must also give a copy of the notice to the attorney being prosecuted.

The Disciplinary Tribunal sets the time, date and place for a hearing. The date must be at least 21 days after the attorney has been given a copy of the notice.

Hearings are conducted quickly and informally while allowing for the proper consideration of the matters. The Tribunal is not bound by the rules of evidence but may take evidence on oath.

Hearings before the Tribunal are in public unless the Tribunal decides it is not in the public interest or because of the confidential nature of any evidence or matter before it.

Parties before the Tribunal may appear in person or be represented by legal practitioners. The Tribunal also has the power to allow a person other than a legal practitioner to represent someone. Parties before the Tribunal may ask the Tribunal to summon witnesses.

Witnesses summoned to appear must give evidence and produce documents mentioned in the summons. Where the attorney is summoned they must produce documents and give evidence to identify the documents.

Those summoned to appear are subject to penalties if they fail to appear or provide documents without reasonable excuse. A reasonable excuse is that the documents or answers to questions may tend to prove the person had committed an offence against a law of the Commonwealth or a State or Territory.

Tribunal Decisions

The Tribunal may find a registered patent attorney:

• guilty of professional misconduct; or
• guilty of unsatisfactory professional conduct

and may

• reprimand the attorney;
• suspend the attorney's registration for not more that 12 months; or
• in the case of professional misconduct, cancel the registration.

Where an attorney has been found guilty of being unqualified at the time of registration, the Tribunal may:

• if the attorney has subsequently obtained the qualification or the qualification is no longer required for registration, reprimand the attorney, or
• in any other case, cancel the registration.

If the Tribunal finds that the attorney obtained his or her registration by fraud, the Tribunal must cancel the registration.

The Tribunal must give a written statement of its decision, setting out the reasons for the decision and the findings on any material questions of fact. The Tribunal must arrange for its decisions to be published.

The Tribunal may appoint a registered patent attorney to carry on the practice of a former patent attorney whose registration has been cancelled or suspended.

Where a registered attorney is appointed to carry on the practice the attorney must obtain the consent of clients' to act on their behalf.

Recent decisions

PADT Decision - Hodgkinson v McLean

PADT Decision - Nuttal v Kelly

Appeals

Appeals can be lodged in the Administrative Appeals Tribunal (AAT):

• against a decision of the Disciplinary Tribunal to find the attorney "guilty" or "not guilty", or
• over the level of penalty imposed by the Disciplinary Tribunal.

Appeals must be lodged in accordance with requirements specified on the AAT web site.
Information can also be obtained by phoning the Registry of the AAT in any State.