Dealing with complaints - for attorneys

Complaints against attorneys

Grounds for complaint

The Professional Standards Board for Patent and Trade Marks Attorneys (PSB) is responsible for investigating any complaint made about an attorney.

A complaint, or information on the behaviour of an attorney, may be provided to the PSB from any member of the public, 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 their registration
  • has obtained registration by fraud

Definitions

Professional misconduct means:

  • unsatisfactory professional conduct that involves a substantial or consistent failure to reach reasonable standards of competence and diligence
  • 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
  • any contravention of a law that is declared by the Patents Regulations 1991 or the Trade Marks Regulations 1995 to be professional misconduct

Unsatisfactory professional conduct includes conduct, in connection with practice, as a registered patent or trade marks 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.

Complaints and discipline

The PSB has the sole responsibility for commencing and conducting disciplinary proceedings against a registered attorney.

Any person or body may complain or provide information to the PSB concerning the conduct of a registered attorney.

The PSB's role in the commencing of disciplinary proceedings includes investigating either as a result of information received or of its own motion whether an attorney has engaged in professional misconduct or unsatisfactory professional conduct.

Clients must discuss the grievance with the attorney in an attempt to reach settlement, before referring the conduct of the attorney to the PSB for further investigation.

What happens once a complaint is filed?

Once a complaint has been filed, the PSB Secretary will inform the involved attorney, send them the information you have provided in your complaint, and invite an initial response. You may then be invited to comment on the attorney’s response.

The Secretary will then provide a written report to the PSB setting out details of the complaint and any initial response from the attorney (together, if applicable, with your additional comments).

If, following an investigation, the PSB is satisfied there is a likelihood of the attorney being found guilty, it will start a prosecution before the Patent and Trade Marks Attorneys Disciplinary Tribunal (the tribunal).

You can ask the PSB to notify you of the outcome of an investigation.

You may be asked to supply more information during an investigation.

Hearings and decisions

Complaints about patent and trade marks attorneys are heard by the tribunal. The tribunal is also established under the regulations.

The PSB commences disciplinary proceedings by giving notice to the tribunal.

The 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.

How hearings are conducted

Hearings are conducted quickly and informally, while allowing for the matter to be properly considered. The tribunal is not bound by the rules of evidence, but may take evidence on oath.

Hearings before the tribunal must be in public unless the tribunal decides it is not in the public interest to do so, or because of the confidential nature of any evidence or matter before the tribunal.

Appearing before the tribunal

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 a person.

Parties before the tribunal may request 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.

People summoned to appear or provide documents are subject to penalties if they do not comply without a reasonable excuse.

It is a defence to refuse to answer a question or produce a document or article if the answer to the question or the document or the article may tend to prove the person had committed an offence against a law of the Commonwealth or a state or territory.

Tribunal findings

The tribunal may, depending on the charge brought against the attorney, find that a registered patent attorney is:

  • not guilty of any wrongdoing
  • guilty of professional misconduct
  • guilty of unsatisfactory professional conduct

Where the tribunal finds an attorney guilty of professional misconduct it may:

  • cancel the attorney's registration
  • suspend the attorney's registration between six and 12 months
  • require the attorney to undertake additional continuing professional education
  • require the attorney to work for a period of time not exceeding two years under the supervision of a person who has been registered for not less than five years

Where the tribunal finds the attorney guilty of unsatisfactory professional conduct, it may:

  • administer a public reprimand to the attorney
  • suspend the attorney's registration for up to 12 months
  • require the attorney to undertake additional continuing professional education
  • require the attorney to work for a period of time not exceeding two years under the supervision of a person who has been registered for not less than five years

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 a written statement setting out the decision to be published in the Australian Official Journal of Patents.

Unqualified at time of registration

The tribunal may reprimand an attorney found guilty of being unqualified when they registered if:

  • the attorney has since obtained the registration
  • the registration is no longer required

In other cases, the tribunal may cancel the registration.

Registration obtained by fraud

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

Appointing a registered patent attorney to carry on a practice

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 clients' consent to act on their behalf.

Decisions of the tribunal

Re Kevin Pullen PDF.pdf [78KB]

Re Howard Schulze & Re Phillip Boehm.pdf

Jamie Ricardo Massang - complaint by AB - decision as to penalty - 24 November 2009.pdf (as amended by the PSB to de-identify the complainant)

Jaimie Ricardo Massang - complaint by AB - decision 10 June 2009.pdf (as amended by the PSB to de-identify the complainant)

Blenkinship - Complaint by Nielsen and Techmin Pty Ltd.pdf

Hodgkinson - Complaint by McLean.pdf

Kelly - Complaint by Nuttall.pdf

Disciplinary tribunal decision - PSB vs Macauley.pdf

Appealing a decision

Appeals against decisions made by the tribunal can be lodged through the Administrative Appeals Tribunal (AAT):

  • against a decision of the tribunal to find the attorney ‘guilty’ or ‘not guilty’
  • about the level of penalty imposed by the tribunal

Appeals must follow the requirements specified on the AAT website.

For more information contact the AAT registry in your relevant state.

There are no explicit provisions in the regulations covering an appeal against a decision made by the PSB not to commence proceedings before the tribunal.

Persons are recommended to seek professional legal advice if they wish to appeal against these PSB decisions.

What you should know about the regulations (the disciplinary regime)

It is important that attorneys understand that the regulations do not give complainants a forum to obtain damages for losses resulting from an attorney's behaviour where:

  • claims seek restitution for overcharging or failure to perform services
  • compensation is for claims for damage or for loss of profits
  • actions seek the return of documents

These claims need to be pursued in other forums.

The Ethics and Disputes Committee of The Institute of Patent and Trade Mark Attorneys of Australia considers complaints against any of its members. This regime is independent of the formal provisions included in our regulations. Sanctions apply only to the institute’s membership.