The Code of Conduct

The Code of Conduct sets the standards of practice for trans-Tasman patent attorneys and Australian trade marks attorneys.

About the code

The Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018 is designed to protect clients and ensure that intellectual property (IP) attorneys are held to high standards of ethical conduct. It defines the current standards of practice.

The code applies to:

• Registered trans-Tasman patent attorneys
• Registered Australian trade marks attorneys
• Incorporated patent and trade marks attorneys.

It doesn't provide an exhaustive list of an attorney’s obligations. However, it must be considered when the Board is deciding whether or not an attorney has engaged in unsatisfactory professional conduct or professional misconduct.

To help attorneys understand its requirements, the Board publishes non-binding guidelines which provide further explanations and supporting examples:

Key provisions of the code

Key provisions of the Code of Conduct include:

Core obligations

A registered attorney’s core obligations are to act in:

• Accordance with the law
• The best interests of the registered attorney’s clients
• The public interest
• The interests of the registered attorney’s profession.

If an attorney is unable to equally comply with all the core obligations, they must prioritise their obligations in the order of the list above.

Integrity, competency and diligence

A registered attorney must:

• Be courteous, ethical and well-informed
• Not act in a way that is fraudulent, deceitful or knowingly misleading
• Have appropriate competency for their work
• Carry out work with due skill and care in a timely manner, including informing the client in a timely manner if unable to carry out instructions.

Loyalty, conflicts of interest and confidentiality

A registered attorney must act in the client’s best interest and not their own. They also must not favour the interests of one client over another.

A registered attorney must:

• Keep confidential information from a client, former client or prospective client confidential, except with the informed consent of the client
• Take all reasonable steps to avoid an actual or possible conflict between the client’s interests and those of the attorney or another of the attorney’s clients
• Take all reasonable steps to resolve any conflicts of interest.

Attorneys from the same firm:

• Can only act for clients who have opposing interests in a matter if they have the clients’ informed consent. If so, effective information barriers must be in place to protect confidential information.
• Can't act for clients in the same matter relating to a proceeding before a court, tribunal or IP office where the client’s interests are likely to conflict.

Communication

Before doing work for a client, an attorney must inform them of the following in writing:

• That they are registered as an attorney and are bound by the code
• That they have appropriate competency to do the work
• The procedures, timing and estimated cost of the work
• Whether the registered attorney is an incorporated company and is public or private
• If they are part of an ownership group comprising multiple firms, the identity of the other members of the group.

Responsibility

Registered attorneys are responsible for their own work, including any actions or omissions, and and anyone who does work for them.

Incorporated attorneys are responsible for the work of their directors, staff and anyone else who does work for them.

Funds

Attorneys must:

• Use client funds to pay costs, official fees or debts in a timely manner
• Use appropriate accounting standards for client funds
• Only use client funds in accordance with the client’s purpose or instructions
• Process refunds due to a client as soon as practicable.

Ownership groups

Two or more incorporated attorneys or two or more partnerships may join together to form an ‘ownership group’. Typically, they will have separate brands, staff and business models, but share a common owner. If an attorney is a member of an ownership group, they must:

• Clearly disclose their membership of the ownership group and the identity of the other members of the group to the public
• Clearly inform clients in writing about their membership and the identity of the other group members
• Gain consent from their client to act for them in matters relating to a proceeding before a court, tribunal or IP office, if their client’s interests are adverse to a client represented by another member of the ownership group.