PATENT AND TRADEMARK OFFICE CODE OF PROFESSIONAL RESPONSIBILITY
§10.20 Canons and Disciplinary Rules.
(a)Canons are set out in §§ 10.21, 10.30, 10.46, 10.56, 10.61, 10.76, 10.83, 10.100, and 10.110.Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of practitioners in their relationships with the public, with the legal system, and with the legal profession.
(b)Disciplinary Rules are set out in §§10.22, 10.24, 10.31-10.40, 10.47-10.57, 10.62-10.68, 10.77, 10.78, 10.84, 10.85, 10.87-10.89, 10.92, 10.93, 10.101-10.103, 10.111, and 10.112. Disciplinary Rules are mandatory in character and state the minimum level of conduct below which no practitioner can fall without being subjected to disciplinary action.
§10.21 Canon 1. A practitioner should assist in maintaining the integrity and competence of the legal profession.
§10.22 Maintaining integrity and competence of the legal profession.
(a)A practitioner is subject to discipline if the practitioner has made a materially false statement in, or if the practitioner has deliberately failed to disclose a material fact requested in connection with, the practitioner’s application for registration or membership in the bar of any United States court or any State court or his or her authority to otherwise practice before the Office in trademark and other non-patent cases.
(b)A practitioner shall not further the application for registration or membership in the bar of any United States court, State court, or administrative agency of another person known by the practitioner to be unqualified in respect to character, education, or other relevant attribute.
(a)A practitioner shall not engage in disreputable or gross misconduct.
(b)A practitioner shall not:
(1)Violate a Disciplinary Rule.
(2)Circumvent a Disciplinary Rule through actions of another.
(3)Engage in illegal conduct involving moral turpitude.
(4)Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5)Engage in conduct that is prejudicial to the administration of justice.
(6)Engage in any other conduct that adversely reflects on the practitioner’s fitness to practice before the Office.
(c)Conduct which constitutes a violation of paragraphs (a)and (b)of this section includes, but is not limited to:
(1)Conviction of a criminal offense involving moral turpitude, dishonesty, or breach of trust.
(2)Knowingly giving false or misleading information or knowingly participating in a material way in giving false or misleading information, to:
(i)A client in connection with any immediate, prospective, or pending business before the Office.
(ii)The Office or any employee of the Office.
(3)Misappropriation of, or failure to properly or timely remit, funds received by a practitioner or the practitioner’s firm from a client to pay a fee which the client is required by law to pay to the Office.
(4)Directly or indirectly improperly influencing, attempting to improperly influence, offering or agreeing to improperly influence, or attempting to offer or agree to improperly influence an official action of any employee of the Office by:
(i)Use of threats, false accusations, duress, or coercion,
(ii)An offer of any special inducement or promise of advantage, or
(iii)Improperly bestowing of any gift, favor, or thing of value.
(5)Suspension or disbarment from practice as an attorney or agent on ethical grounds by any duly constituted authority of a State or the United States or, in the case of a practitioner who resides in a foreign country or is registered under §10.6(c), by any duly constituted authority of:
(ii)The United States, or
(iii)The country in which the practitioner resides.
(6)Knowingly aiding or abetting a practitioner suspended or excluded from practice before the Office in engaging in unauthorized practice before the Office under §10.158.
(7)Knowingly withholding from the Office information identifying a patent or patent application of another from which one or more claims have been copied. See §§1.604(b)and 1.607(c)of this subchapter.
(8)Failing to inform a client or former client or failing to timely notify the Office of an inability to notify a client or former client of correspondence received from the Office or the client’s or former client’s opponent in aninter partes proceeding before the Office when the correspondence (i)could have a significant effect on a matter pending before the Office, (ii)is received by the practitioner on behalf of a client or former client and (iii)is correspondence of which a reasonable practitioner would believe under the circumstances the client or former client should be notified.
(9)Knowingly misusing a "Certificate of Mailing or Transmission " under § 1.8 of this chapter.
(10)Knowingly violating or causing to be violated the requirements of § 1.56 or §1.555 of this subchapter.
(11)Except as permitted by § 1.52(c)of this chapter, knowingly filing or causing to be filed an application containing any material alteration made in the application papers after the signing of the accompanying oath or declaration without identifying the alteration at the time of filing the application papers.
(12)Knowingly filing, or causing to be filed, a frivolous complaint alleging a violation by a practitioner of the Patent and Trademark Office Code of Professional Responsibility.
(13)Knowingly preparing or prosecuting or providing assistance in the preparation or prosecution of a patent application in violation of an undertaking signed under § 10.10(b).
(14)Knowingly failing to advise the Director in writing of any change which would preclude continued registration under § 10.6.
(15)Signing a paper filed in the Office in violation of the provisions of § 10.18 or making a scandalous or indecent statement in a paper filed in the Office.
(16)Willfully refusing to reveal or report knowledge or evidence to the Director contrary to §10.24 or paragraph (b)of § 10.131.
(17)Representing before the Office in a patent case either a joint venture comprising an inventor and an invention developer or an inventor referred to the registered practitioner by an invention developer when (i)the registered practitioner knows, or has been advised by the Office, that a formal complaint filed by a Federal or State agency, based on any violation of any law relating to securities, unfair methods of competition, unfair or deceptive acts or practices, mail fraud, or other civil or criminal conduct, is pending before a Federal or State court or Federal or State agency, or has been resolved unfavorably by such court or agency, against the invention developer in connection with invention development services and
(ii)the registered practitioner fails to fully advise the inventor of the existence of the pending complaint or unfavorable resolution thereof prior to undertaking or continuing representation of the joint venture or inventor. "Invention developer " means any person, and any agent, employee, officer, partner, or independent contractor thereof, who is not a registered practitioner and who advertises invention development services in media of general circulation or who enters into contracts for invention development services with customers as a result of such advertisement. "Invention development services " means acts of invention development required or promised to be performed, or actually performed, or both, by an invention developer for a customer. "Invention development " means the evaluation, perfection, marketing, brokering, or promotion of an invention on behalf of a customer by an invention developer, including a patent search, preparation of a patent application, or any other act done by an invention developer for consideration toward the end of procuring or attempting to procure a license, buyer, or patent for an invention. "Customer " means any individual who has made an invention and who enters into a contract for invention development services with an invention developer with respect to the invention by which the inventor becomes obligated to pay the invention developer less than $5, 000
(not to include any additional sums which the invention developer is to receive as a result of successful development of the invention). "Contract for invention development services " means a contract for invention development services with an invention developer with respect to an invention made by a customer by which the inventor becomes obligated to pay the invention developer less than $5, 000 (not to include any additional sums which the invention developer is to receive as a result of successful development of the invention).
(18)In the absence of information sufficient to establish a reasonable belief that fraud or inequitable conduct has occurred, alleging before a tribunal that anyone has committed a fraud on the Office or engaged in inequitable conduct in a proceeding before the Office.
(19)Action by an employee of the Office contrary to the provisions set forth in § 10.10(c).
(20)Knowing practice by a Government employee contrary to applicable Federal conflict of interest laws, or regulations of the Department, agency, or commission employing said individual.
(d)A practitioner who acts with reckless indifference to whether a representation is true or false is chargeable with knowledge of its falsity. Deceitful statements of half-truths or concealment of material facts shall be deemed actual fraud within the meaning of this part.
§10.24 Disclosure of information to authorities.
(a)A practitioner possessing unprivileged knowledge of a violation of a Disciplinary Rule shall report such knowledge to the Director.
(b)A practitioner possessing unprivileged knowledge or evidence concerning another practitioner, employee of the Office, or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of practitioners, employees of the Office, or judges.
§10.25 -10.29 [Reserved ]
§10.30 Canon 2.A practitioner should assist the legal profession in fulfilling its duty to make legal counsel available.
§10.31 Communications concerning a practitioner’s services.
(a)No practitioner shall with respect to any prospective business before the Office, by word, circular, letter, or advertising, with intent to defraud in any manner, deceive, mislead, or threaten any prospective applicant or other person having immediate or prospective business before the Office.
(b)A practitioner may not use the name of a Member of either House of Congress or of an individual in the service of the United States in advertising the practitioner’s practice before the Office.
(c)Unless authorized under § 10.14(b), a nonlawyer practitioner shall not hold himself or herself out as authorized to practice before the Office in trademark cases.
(d)Unless a practitioner is an attorney, the practitioner shall not hold himself or herself out:
(1)To be an attorney or lawyer or
(2)As authorized to practice before the Office in non-patent and trademark cases.
(a)Subject to § 10.31, a practitioner may advertise services through public media, including a telephone directory, legal directory, newspaper, or other periodical, radio, or television, or through written communications not involving solicitation as defined by § 10.33.
(b)A practitioner shall not give anything of value to a person for recommending the practitioner’s services, except that a practitioner may pay the reasonable cost of advertising or written communication permitted by this section and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.
(c)Any communication made pursuant to this section shall include the name of at least one practitioner responsible for its content.
§10.33 Direct contact with prospective clients. A practitioner may not solicit professional employment from a prospective client with whom the practitioner has no family or prior professional relationship, by mail, in-person, or otherwise, when a significant motive for the practitioner’s doing so is the practitioner’s pecuniary gain under circumstances evidencing undue influence, intimidation, or overreaching. The term "solicit "includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not specifically known to need legal services of the kind provided by the practitioner in a particular matter, but who are so situated that they might in general find such services useful.
§10.34 Communication of fields of practice. A registered practitioner may state or imply that the practitioner is a specialist as follows:
(a)A registered practitioner who is an attorney may use the designation "Patents, " "Patent Attorney, " "Patent Lawyer, " "Registered Patent Attorney, " or a substantially similar designation.
(b)A registered practitioner who is not an attorney may use the designation "Patents, " "Patent Agent, ""Registered Patent Agent, " or a substantially similar designation, except that any practitioner who was registered prior to November 15, 1938, may refer to himself or herself as a "patent attorney. "
§10.35 Firm names and letterheads.
(a)A practitioner shall not use a firm name, letterhead, or other professional designation that violates
§10.31. A trade name may be used by a practitioner in private practice if it does not imply a current connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of §10.31.
(b)Practitioners may state or imply that they practice in a partnership or other organization only when that is the fact.
§10.36 Fees for legal services.
(a)A practitioner shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(b)A fee is clearly excessive when, after a review of the facts, a practitioner of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2)The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the practitioner.
(3)The fee customarily charged for similar legal services.
(4)The amount involved and the results obtained.
(5)The time limitations imposed by the client or by the circumstances.
(6)The nature and length of the professional relationship with the client.
(7)The experience, reputation, and ability of the practitioner or practitioners performing the services.
(8)Whether the fee is fixed or contingent.
§10.37 Division of fees among practitioners.
(a)A practitioner shall not divide a fee for legal services with another practitioner who is not a partner in or associate of the practitioner’s law firm or law office, unless:
(1)The client consents to employment of the other practitioner after a full disclosure that a division of fees will be made.
(2)The division is made in proportion to the services performed and responsibility assumed by each.
(3)The total fee of the practitioners does not clearly exceed reasonable compensation for all legal services rendered to the client.
(b)This section does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.
§10.38 Agreements restricting the practice of a practitioner.
(a)A practitioner shall not be a party to or participate in a partnership or employment agreement with another practitioner that restricts the right of a practitioner to practice before the Office after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.
(b)In connection with the settlement of a controversy or suit, a practitioner shall not enter into an agreement that restricts the practitioner’s right to practice before the Office.
§10.39 Acceptance of employment. A practitioner shall not accept employment on behalf of a person if the practitioner knows or it is obvious that such person wishes to:
(a)Bring a legal action, commence a proceeding before the Office, conduct a defense, assert a position in any proceeding pending before the Office, or otherwise have steps taken for the person, merely for the purpose of harassing or maliciously injuring any other person.
(b)Present a claim or defense in litigation or any proceeding before the Office that it is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.
§10.40 Withdrawal from employment.
(a)A practitioner shall not withdraw from employment in a proceeding before the Office without permission from the Office (see §§ 1.36 and 2. 19 of this subchapter). In any event, a practitioner shall not withdraw from employment until the practitioner has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to his or her client, allowing time for employment of another practitioner, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. A practitioner who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
(b)Mandatory withdrawal . A practitioner representing a client before the Office shall withdraw from employment if:
(1)The practitioner knows or it is obvious that the client is bringing a legal action, commencing a proceeding before the Office, conducting a defense, or asserting a position in litigation or any proceeding pending before the Office, or is otherwise having steps taken for the client, merely for the purpose of harassing or maliciously injuring any person;
(2)The practitioner knows or it is obvious that the practitioner’s continued employment will result in violation of a Disciplinary Rule;
(3)The practitioner’s mental or physical condition renders it unreasonably difficult for the practitioner to carry out the employment effectively; or
(4)The practitioner is discharged by the client.
(c)Permissive withdrawal. If paragraph (b)of this section is not applicable, a practitioner may not request permission to withdraw in matters pending before the Office unless such request or such withdrawal is because:
(1)The petitioner’s client:
(i)Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;
(ii)Personally seeks to pursue an illegal course of conduct;
(iii)Insists that the practitioner pursue a course of conduct that is illegal or that is prohibited under a Disciplinary Rule;
(iv)By other conduct renders it unreasonably difficult for the practitioner to carry out the employment effectively;
(v)Insists, in a matter not pending before a tribunal, that the practitioner engage in conduct that is contrary to the judgment and advice of the practitioner but not prohibited under the Disciplinary Rule; or
(vi)Has failed to pay one or more bills rendered by the practitioner for an unreasonable period of time or has failed to honor an agreement to pay a retainer in advance of the performance of legal services.
(2)The practitioner’s continued employment is likely to result in a violation of a Disciplinary Rule;
(3)The practitioner’s inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;
(4)The practitioner’s mental or physical condition renders it difficult for the practitioner to carry out the employment effectively;
(5)The practitioner’s client knowingly and freely assents to termination of the employment; or
(6)The practitioner believes in good faith, in a proceeding pending before the Office, that the Office will find the existence of other good cause for withdrawal.
§10.41 -10.45 [Reserved ]
§10.46 Canon 3.A practitioner should assist in preventing the unauthorized practice of law.
§10.47 Aiding unauthorized practice of law.
(a)A practitioner shall not aid a non-practitioner in the unauthorized practice of law before the Office.
(b)A practitioner shall not aid a suspended or excluded practitioner in the practice of law before the Office.
(c)A practitioner shall not aid a non-lawyer in the unauthorized practice of law.
§10.48 Sharing legal fees. A practitioner or a firm of practitioners shall not share legal fees with a non-practitioner except that:
(a)An agreement by a practitioner with the practitioner’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the practitioner’s death, to the practitioner’s estate or to one or more specified persons.
(b)A practitioner who undertakes to complete unfinished legal business of a deceased practitioner may pay to the estate of the deceased practitioner that proportion of the total compensation which fairly represents the services rendered by the deceased practitioner.
(c)A practitioner or firm of practitioners may include non-practitioner employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement, providing such plan does not circumvent another Disciplinary Rule.
§10.49 Forming a partnership with a non-practitioner. A practitioner shall not form a partnership with a nonpractitioner if any of the activities of the partnership consist of the practice of patent, trademark, or other law before the Office.
§10.50 -10.55 [Reserved ]
§10.56 Canon 4.A practitioner should preserve the confidences and secrets of a client.
§10.57 Preservation of confidences and secrets of a client.
(a)"Confidence " refers to information protected by the attorney-client or agent-client privilege under applicable law. "Secret " refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(b)Except when permitted under paragraph (c) of this section, a practitioner shall not knowingly:
(1)Reveal a confidence or secret of a client.
(2)Use a confidence or secret of a client to the disadvantage of the client.
(3)Use a confidence or secret of a client for the advantage of the practitioner or of a third person, unless the client consents after full disclosure.
(c)A practitioner may reveal:
(1)Confidences or secrets with the consent of the client affected but only after a full disclosure to the client.
(2)Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3)The intention of a client to commit a crime and the information necessary to prevent the crime.
(4)Confidences or secrets necessary to establish or collect the practitioner’s fee or to defend the practitioner or the practitioner’s employees or associates against an accusation of wrongful conduct.
(d)A practitioner shall exercise reasonable care to prevent the practitioner’s employees, associates, and others whose services are utilized by the practitioner from disclosing or using confidences or secrets of a client, except that a practitioner may reveal the information allowed by paragraph (c)of this section through an employee.
§10.58 -10.60 [Reserved ]
§10.61 Canon 5.A practitioner should exercise independent professional judgment on behalf of a client.
§10.62 Refusing employment when the interest of the practitioner may impair the practitioner’s independent professional judgment.
(a)Except with the consent of a client after full disclosure, a practitioner shall not accept employment if the exercise of the practitioner’s professional judgment on behalf of the client will be or reasonably may be affected by the practitioner’s own financial, business, property, or personal interests.
(b)A practitioner shall not accept employment in a proceeding before the Office if the practitioner knows or it is obvious that the practitioner or another practitioner in the practitioner’s firm ought to sign an affidavit to be filed in the Office or be called as a witness, except that the practitioner may undertake the employment and the practitioner or another practitioner in the practitioner’s firm may testify:
(1)If the testimony will relate solely to an uncontested matter.
(2)If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3)If the testimony will relate solely to the nature and value of legal services rendered in the case by the practitioner or the practitioner’s firm to the client.
(4)As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the practitioner or the practitioner’s firm as counsel in the particular case.
§10.63 Withdrawal when the practitioner becomes a witness.
(a)If, after undertaking employment in a proceeding in the Office, a practitioner learns or it is obvious that the practitioner or another practitioner in the practitioner’s firm ought to sign an affidavit to be filed in the Office or be called as a witness on behalf of a practitioner’s client, the practitioner shall withdraw from the conduct of the proceeding and the practitioner’s firm, if any, shall not continue representation in the proceeding, except that the practitioner may continue the representation and the practitioner or another practitioner in the practitioner’s firm may testify in the circumstances enumerated in paragraphs
(1)through (4)of § 10.62(b).
(b)If, after undertaking employment in a proceeding before the Office, a practitioner learns or it is obvious that the practitioner or another practitioner in the practitioner’s firm may be asked to sign an affidavit to be filed in the Office or be called as a witness other than on behalf of the practitioner’s client, the practitioner may continue the representation until it is apparent that the practitioner’s affidavit or testimony is or may be prejudicial to the practitioner’s client.
§10.64 Avoiding acquisition of interest in litigation or proceeding before the Office.
(a)A practitioner shall not acquire a proprietary interest in the subject matter of a proceeding before the Office which the practitioner is conducting for a client, except that the practitioner may:
(1)Acquire a lien granted by law to secure the practitioner’s fee or expenses; or
(2)Contract with a client for a reasonable contingent fee; or
(3)In a patent case, take an interest in the patent as part or all of his or her fee.
(b)While representing a client in connection with a contemplated or pending proceeding before the Office, a practitioner shall not advance or guarantee financial assistance to a client, except that a practitioner may advance or guarantee the expenses of going forward in a proceeding before the Office including fees required by law to be paid to the Office, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses. A practitioner may, however, advance any fee required to prevent or remedy an abandonment of a client’s application by reason of an act or omission attributable to the practitioner and not to the client, whether or not the client is ultimately liable for such fee.
§10.65 Limiting business relations with a client. A practitioner shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the practitioner to exercise professional judgment therein for the protection of the client, unless the client has consented after full disclosure.
§10.66 Refusing to accept or continue employment if the interests of another client may impair the independent professional judgment of the practitioner.
(a)A practitioner shall decline proffered employment if the exercise of the practitioner’s independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the practitioner in representing differing interests, except to the extent permitted under paragraph (c)of this section.
(b)A practitioner shall not continue multiple employment if the exercise of the practitioner’s independent professional judgment in behalf of a client will be or is likely to be adversely affected by the practitioner’s representation of another client, or if it would be likely to involve the practitioner in representing differing interests, except to the extent permitted under paragraph (c)of this section.
(c)In the situations covered by paragraphs (a) and (b)of this section, a practitioner may represent multiple clients if it is obvious that the practitioner can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the practitioner’s independent professional judgment on behalf of each.
(d)If a practitioner is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other practitioner affiliated with the practitioner or the practitioner’s firm, may accept or continue such employment unless otherwise ordered by the Director or Commissioner.
§10.67 Settling similar claims of clients. A practitioner who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against the practitioner’s clients, unless each client has consented to the settlement after being advised of the existence and nature of all the claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of each person in the settlement.
§10.68 Avoiding influence by others than the client.
(a)Except with the consent of the practitioner’s client after full disclosure, a practitioner shall not:
(1)Accept compensation from one other than the practitioner’s client for the practitioner’s legal services to or for the client.
(2)Accept from one other than the practitioner’s client any thing of value related to the practitioner’s representation of or the practitioner’s employment by the client.
(b)A practitioner shall not permit a person who recommends, employs, or pays the practitioner to render legal services for another, to direct or regulate the practitioner’s professional judgment in rendering such legal services.
(c)A practitioner shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if a non-practitioner has the right to direct or control the professional judgment of a practitioner.
§10.69 -10.75 [Reserved ]
§10.76 Canon 6.A practitioner should represent a client competently.
§10.77 Failing to act competently. A practitioner shall not:
(a)Handle a legal matter which the practitioner knows or should know that the practitioner is not competent to handle, without associating with the practitioner another practitioner who is competent to handle it.
(b)Handle a legal matter without preparation adequate in the circumstances.
(c)Neglect a legal matter entrusted to the practitioner.
§10.78 Limiting liability to client. A practitioner shall not attempt to exonerate himself or herself from, or limit his or her liability to, a client for his or her personal malpractice.
§10.79 -10.82 [Reserved ]
§10.83 Canon 7.A practitioner should represent a client zealously within the bounds of the law.
§10.84 Representing a client zealously.
(a)A practitioner shall not intentionally:
(1)Fail to seek the lawful objectives of a client through reasonable available means permitted by law and the Disciplinary Rules, except as provided by paragraph (b)of this section. A practitioner does not violate the provisions of this section, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
(2)Fail to carry out a contract of employment entered into with a client for professional services, but a practitioner may withdraw as permitted under §§ 10.40, 10.63, and 10.66.
(3)Prejudice or damage a client during the course of a professional relationship, except as required under this part.
(b)In representation of a client, a practitioner may:
(1)Where permissible, exercise professional judgment to waive or fail to assert a right or position of the client.
(2)Refuse to aid or participate in conduct that the practitioner believes to be unlawful, even though there is some support for an argument that the conduct is legal.
§10.85 Representing a client within the bounds of the law.
(a)In representation of a client, a practitioner shall not:
(1)Initiate or defend any proceeding before the Office, assert a position, conduct a defense, delay a trial or proceeding before the Office, or take other action on behalf of the practitioner’s client when the practitioner knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
(2)Knowingly advance a claim or defense that is unwarranted under existing law, except that a practitioner may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
(3)Conceal or knowingly fail to disclose that which the practitioner is required by law to reveal.
(4)Knowingly use perjured testimony or false evidence.
(5)Knowingly make a false statement of law or fact.
(6)Participate in the creation or preservation of evidence when the practitioner knows or it is obvious that the evidence is false.
(7)Counsel or assist a client in conduct that the practitioner knows to be illegal or fraudulent.
(8)Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
(b)A practitioner who receives information clearly establishing that:
(1)A client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so the practitioner shall reveal the fraud to the affected person or tribunal.
(2)A person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.
§10.86 [Reserved ]
§10.87 Communicating with one of adverse interest.During the course of representation of a client, a practitioner shall not:
(a)Communicate or cause another to communicate on the subject of the representation with a party the practitioner knows to be represented by another practitioner in that matter unless the practitioner has the prior consent of the other practitioner representing such other party or is authorized by law to do so. It is not improper, however, for a practitioner to encourage a client to meet with an opposing party for settlement discussions.
(b)Give advice to a person who is not represented by a practitioner other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the practitioner’s client.
§10.88 Threatening criminal prosecution. A practitioner shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in any prospective or pending proceeding before the Office.
§10.89 Conduct in proceedings.
(a)A practitioner shall not disregard or advise a client to disregard any provision of this Subchapter or a decision of the Office made in the course of a proceeding before the Office, but the practitioner may take appropriate steps in good faith to test the validity of such provision or decision.
(b)In presenting a matter to the Office, a practitioner shall disclose:
(1)Controlling legal authority known to the practitioner to be directly adverse to the position of the client and which is not disclosed by opposing counsel or an employee of the Office.
(2)Unless privileged or irrelevant, the identities of the client the practitioner represents and of the persons who employed the practitioner.
(c)In appearing in a professional capacity before a tribunal, a practitioner shall not:
(1)State or allude to any matter that the practitioner has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
(2)Ask any question that the practitioner has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.
(3)Assert the practitioner’s personal knowledge of the facts in issue, except when testifying as a witness.
(4)Assert the practitioner’s personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the practitioner may argue, on the practitioner’s analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
(5)Engage in undignified or discourteous conduct before the Office (see §1.3 of the subchapter).
(6)Intentionally or habitually violate any provision of this subchapter or established rule of evidence.
§10.90 -10.91 [Reserved ]
§10.92 Contact with witnesses.
(a)A practitioner shall not suppress any evidence that the practitioner or the practitioner’s client has a legal obligation to reveal or produce.
(b)A practitioner shall not advise or cause a person to be secreted or to leave the jurisdiction of a tribunal for the purpose of making the person unavailable as a witness therein.
(c)A practitioner shall not pay, offer to pay, or acquiesce in payment of compensation to a witness contingent upon the content of the witness’ affidavit, testimony or the outcome of the case. But a practitioner may advance, guarantee, or acquiesce in the payment of:
(1)Expenses reasonably incurred by a witness in attending, testifying, or making an affidavit.
(2)Reasonable compensation to a witness for the witness’ loss of time in attending, , testifying, or making an affidavit.
(3)A reasonable fee for the professional services of an expert witness.
§10.93 Contact with officials.
(a)A practitioner shall not give or lend anything of value to a judge, official, or employee of a tribunal under circumstances which might give the appearance that the gift or loan is made to influence official action.
(b)In an adversary proceeding, including anyinter partes proceeding before the Office, a practitioner shall not communicate, or cause another to communicate, as to the merits of the cause with a judge, official, or Office employee before whom the proceeding is pending, except:
(1)In the course of official proceedings in the cause.
(2)In writing if the practitioner promptly delivers a copy of the writing to opposing counsel or to the adverse party if the adverse party is not represented by a practitioner.
(3)Orally upon adequate notice to opposing counsel or to the adverse party if the adverse party is not represented by a practitioner.
(4)As otherwise authorized by law.
§10.94 -10.99 [Reserved ]
§10.100 Canon 8.A practitioner should assist in improving the legal system.
§10.101 Action as a public official.
(a)A practitioner who holds public office shall not:
(1)Use the practitioner’s public position to obtain, or attempt to obtain, a special advantage in legislative matters for the practitioner or for a client under circumstances where the practitioner knows or it is obvious that such action is not in the public interest.
(2)Use the practitioner’s public position to influence, or attempt to influence, a tribunal to act in favor of the practitioner or of a client.
(3)Accept any thing of value from any person when the practitioner knows or it is obvious that the offer is for the purpose of influencing the practitioner’s action as a public official.
(b)A practitioner who is an officer or employee of the United States shall not practice before the Office in patent cases except as provided in §10.10(c) and (d).
§10.102 Statements concerning officials.
(a)A practitioner shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office or to a position in the Office.
(b)A practitioner shall not knowingly make false accusations against a judge, other adjudicatory officer, or employee of the Office.
§10.103 Practitioner candidate for judicial office. A practitioner who is a candidate for judicial office shall comply with applicable provisions of law.
§10.104 -10.109 [Reserved ]
§10.110 Canon 9.A practitioner should avoid even the appearance of professional impropriety.
§10.111 Avoiding even the appearance of impropriety.
(a)A practitioner shall not accept private employment in a matter upon the merits of which he or she has acted in a judicial capacity.
(b)A practitioner shall not accept private employment in a matter in which he or she had personal responsibility while a public employee.
(c)A practitioner shall not state or imply that the practitioner is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.
§10.112 Preserving identity of funds and property of client.
(a)All funds of clients paid to a practitioner or a practitioner’s firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the United States or, in the case of a practitioner having an office in a foreign country or registered under § 10.6((c), in the United States or the foreign country.
(b)No funds belonging to the practitioner or the practitioner’s firm shall be deposited in the bank accounts required by paragraph (a)of this section except as follows:
(1)Funds reasonably sufficient to pay bank charges may be deposited therein.
(2)Funds belonging in part to a client and in part presently or potentially to the practitioner or the practitioner’s firm must be deposited therein, but the portion belonging to the practitioner or the practitioner’s firm may be withdrawn when due unless the right of the practitioner or the practitioner’s firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(c)A practitioner shall:
(1)Promptly notify a client of the receipt of the client’s funds, securities, or other properties.
(2)Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3)Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the practitioner and render appropriate accounts to the client regarding the funds, securities, or other properties.
(4)Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the practitioner which the client is entitled to receive.