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MONTH-IN-BRIEF (Nov 2017)

Professional Responsibility

PTO Pilot Diversion Program for Non-Serious Attorney Misconduct

By Keith R. Fisher, National Center for State Courts

For licensed patent lawyers, the U.S. Patent & Trademark Office (PTO) has inaugurated a new pilot program allowing practitioners suffering from physical, mental, or emotional health issues who engaged in minor misconduct to avoid formal discipline by entering into a diversion agreement and affirmatively undertaking specific remedial steps. To be eligible for diversion, the misconduct must not involve misappropriation of funds or dishonesty, deceit, fraud or misrepresentation; result in or likely result in substantial prejudice to a client or other person; constitute a “serious crime” under PTO regulations; or be part of a pattern of similar misconduct or be of the same nature as misconduct for which the practitioner has been disciplined within the past five years. The two-year pilot program, implemented by the PTO’s Office of Enrollment and Discipline, follows a trend in many jurisdictions allowing diversion for minor misconduct, as shown in data collected by the ABA Standing Committee on Professional Discipline.

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