What to Do When Things Go Wrong

Even in the most professional and competent of organisations things can go wrong.

The Code of Conduct for Patent and Trade Mark Attorneys requires firms to have in place an internal complaints system to try to resolve issues with their clients. Consequently, if you are unhappy with the service you have received from your attorney, you should first raise the issue with the firm under their complaints system.

The Legal Services Act has set up the Office for Legal Complaints to deal with complaints of poor service by attorneys which is expected to be operative in the autumn. Until then if you have been unable to resolve the service complaint with the firm, CIPA and ITMA may be able to assist you. Whilst not binding on the parties and undertaken by the Institutes without liability, this informal approach by the Institutes often enables a satisfactory resolution. Michael Ralph, the Secretary of CIPA (telephone 020 7405 9450), or Keven Bader, the Chief Executive of ITMA (telephone 020 8686 2052) can be contacted to discuss the issue and how they may be able to help to resolve the matter.

From 1st January 2010 the IPReg has taken over responsibility for regulating the patent and trade mark attorney professions, including dealing with complaints of professional misconduct.

What to do if you have a complaint

A complaint about the conduct of an attorney or firm of attorneys must relate to an alleged breach of one or more of the rules set out in the Code of Conduct which applies to both individual attorneys and firms of attorneys regulated by IPReg.

Generally complaints must relate to matters which have occurred within the last 12 months. If the complaint is made outside that period then an explanation why the complaint could not have been brought earlier must be provided.

All complaints relating to an alleged breach of the Code are considered under the Rules of Disciplinary Procedure [to be published].

The information required when making a complaint about the conduct of an attorney or firm is as follows:

The name and address of the complainant
The name and address of the attorney or firm against which the complaint is made
Confirmation that the complaint has been raised with the individual or firm and that a satisfactory outcome has not been achieved
Confirmation whether a complaint in relation to service has been made in parallel
Confirmation that the matter complained of occurred within 12 months prior to the making of the complaint or an explanation why the complaint could not be have been brought within that period
The Rule alleged to have been breached
Full details of the allegation, including how it is alleged the Rule has been breached

No particular form is required to make the application. The complaint should be addressed to Ann Wright, Chief Executive at The Intellectual Property Regulation Board, 3rd Floor, 95 Chancery Lane, London WC2 1DT or Ann.Wright@ipreg.org.uk. An acknowledgment of receipt will be given.

What happens when a complaint is received?

On receipt of the complaint the Chief Executive will assign a case manager to handle the administration of the complaint. The case manager will check that all the necessary information has been provided. The case manager will contact the complainant if further information is required. If there are no formal issues, the case manager will ask the person or firm which is the subject of the complaint to provide their own comments. These comments will normally have to be submitted to IPReg within one month. However if this is not possible and good reasons for the delay are given the case manager can extend this time limit.

Once any comments are received the complaint and the comments are passed to the Complaints Review Committee (CRC) consisting of either a patent or a trademark attorney member (depending upon the profession of the person or firm the subject of the complaint) and two non-attorney members of the IPReg Board. The CRC will determine whether there is, prima facie, a case to answer.

If the CRC considers there is no case to answer it will issue a written decision giving the reasons why it has rejected the complaint.

If CRC considers that there is a case to answer it can:

(if CRC considers a full hearing would be disproportionate) deal with the complaint summarily by the issue of a notice warning or reprimand (together with an award for costs) but the attorney or firm can elect to have the matter referred to a Disciplinary Board; or
refer the complaint to a Disciplinary Board for a formal review.

A Disciplinary Panel will also consist of one attorney and two lay members. The Disciplinary Board will invite the complainant and the attorney or firm to file any facts or evidence in support of their case and upon which they intend to rely. Any submissions by one party will be copied to the other party who may submit a response. Once these submissions are complete both the complainant and the attorney or firm will be invited (but are not required) to make oral submissions to the Disciplinary Board at a formal hearing.

Sanctions

The Disciplinary Board will issue a written decision. If the complaint is upheld there are a number of sanctions that can be applied. These are set out in the Rules of Disciplinary Procedure but range from a warning or reprimand to a fine or being struck off the Register either temporarily or permanently. However the Disciplinary Board cannot make any order for redress to the complainant, although it can award costs.

Appeals

Normally the decision of the Disciplinary Board will conclude the matter. It will, however, be possible to file an appeal against the Disciplinary Board’s decision to an independent appeal board but that appeal will be limited to a review of the earlier decision and will not amount to a re-hearing of the case.

Full details of the procedures are set out in the Rules of Disciplinary Procedure [to be published]. These should be read carefully before submitting a complaint.

Questions on the procedures can be addressed to the Chief Executive by e mail.