Attorney E-Newsletter

July 2013

Patent and Trademark Office Adopts Rules of Professional Conduct

The U.S. Patent and Trademark Office (USPTO) has adopted a new set of Rules of Professional Conduct for lawyers, based on the American Bar Association (ABA) Model Rules of Professional Conduct (78 FR 20179, 4/3/2013, effective 5/3/2013)[1], as are most state rules. The USPTO’s comment in the Federal Register states, “These changes will enable the Office to better protect the public while also providing practitioners with substantially uniform disciplinary rules across multiple jurisdictions.”

The USPTO’s previous set of rules was based on the old Code of Professional Responsibility, which the ABA replaced with the Rules of Professional Conduct in 1983. The USPTO last updated its Code of Professional Responsibility in 1985.

One major variation of the USPTO rules from the ABA standard concerns a unique exception to the requirement of confidentiality. Rule 11.106(c), states that “A practitioner shall disclose to the Office information necessary to comply with applicable duty of disclosure provisions,” which may under some circumstances require release of information that would normally be protected under ABA Rule 1.6. Some intellectual property attorneys worry that compliance with the USPTO requirements may place them out of compliance with state confidentiality provisions.

The Hour of Reckoning Approaches

We have been nagging you for months about your registration forms. July 1 has come and gone, and hopefully all of the conscientious lawyers out there in our readership have put their annual duty in the rear view mirror. However, just in case it may have slipped past due to inadvertence or a six-month scientific mission to Nunavut,[2] this is a reminder that as of July 31 a non-waivable[3] late charge of $150 will accrue. The charge accrues automatically; no notices will be sent. Those who are still unmoved will experience déjà vu all over again on August 31, and on September 3[4], a list of the missing will be sent to the Supreme Court to be administratively suspended. You really don’t want them hearing about it.

More Facebook Follies

Social media continues to be a minefield where lawyers encounter ethics issues of types not seen in the traditional practice of law.

Aaron Brockler, an Ohio prosecutor, was fired after it was revealed that he posed as an ex-girlfriend of a defendant in a Facebook chat with an alibi witness, attempting to persuade her to change her testimony. He spoke to both women the next day, without revealing what he had done, and they both changed their stories. The ruse came to light when another prosecutor who handled the file while Brockler was on medical leave discovered transcripts of the chats in the file, and contacted Brockler to find out what the transcripts represented. When Brockler informed the colleague that he was the actor in the transcripts, his colleague reported the conduct to supervisors, who transferred the case to the Ohio Attorney General’s office and began the process that led to Brockler’s dismissal.

Virginia lawyer Daniel J. Miller faces a defamation lawsuit after he posted an unflattering picture of a criminal defendant on Facebook, with an off-color and derogatory joke about another attorney who was representing the client. Miller’s counsel claims the comment was just “some good-natured jesting with a colleague,” but the subject of the jest disagrees and is seeking damages for harm to his reputation. The incident also led the court to impose new restrictions on the use of cellphones by attorneys and others allowed to bring such devices into the courtroom, a privilege denied the general public.

Isn’t That Special?

A number of sharp-eyed readers pointed out that in our last issue we stated that a new Board member "specialized" in domestic relations. As many of you (and we) know, lawyers are not permitted to "specialize" under Rule 7.4(a) of the Rules of Professional Conduct. The article should have stated that he "concentrates his practice" on domestic relations. The mistake was ours, not his. Our apologies to all.

Second Act for F. Lee

F. Lee Bailey was once one of the most famous lawyers in the land. He represented high-profile defendants like Dr. Sam Shepperd, Albert DeSalvo, Patty Hearst, O.J. Simpson, and one of the My Lai defendants. Disbarred by Florida in 2001 and Massachusetts in 2003, he was perhaps the most famous disbarred former lawyer in the land. Now, at age 79, he is back in the game.

By order dated June 13, 2013, the Supreme Court of Maine cleared the final obstacle to Bailey’s admission to the practice of law in Maine by denying the Bar’s motion for reconsideration of a previous order conditionally granting Bailey’s application for admission. In that order, the Court wrestled with the question of whether an unpaid IRS debt of $2 million would block Bailey’s admission on character grounds, and concluded that since the sum is still under litigation it does not constitute evidence of bad character at this point. This clears the path for Bailey to practice law in Maine.

Let Us Know

Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you. Please do not reply to this email. Instead, send any comments or questions to

[1] It should be noted that while the text of the rules tracks that of the Rules of Professional Conduct, the numbering system employed does not.

[2] We were offered such an expedition, but we’re having Nunavut.

[3] Under the Supreme Court’s rule, staff are not allowed to waive fees no matter what the reason. Sorry, please don’t ask.

[4] We’re not going to come in on Labor Day to mail the list. We’re dedicated, but not that dedicated.