Professional ethics of Indian IP counsels reaching new lows
This post is inspired after three hours of discussion with a client in respect of their trademarks portfolio. Even though this is not the first time that I have heard a client complaining about unethical practices of an Indian IP counsel, today, however, I feel that it has reached a new low.
Several years earlier, the client had engaged the services of a certain firm for filing trademark applications and to build a portfolio of family trademarks. Few months earlier, the client became aware of another small company using a confusingly similar mark. They instructed the firm to file a suit for infringement which was surprisingly decided against the organization. Subsequently when the client reviewed the suit as filed with the court, they were shocked to note that neither were any of the grounds discussed by them, raised in the plaint, nor was any of the two decades worth of proof submitted as documentary evidence of global usage of the mark, in support of the suit. Curious enough, the client checked the online records of the trademark office only to find that their counsel was also the counsel for the infringer. When the client confronted the counsel with these findings, the counsel defended his action stating that the marks were not confusing and hence there was nothing wrong in representing the infringer, it was then that the client transferred the entire trademarks portfolio to another counsel. The question is – Is it too much for a client, who has engaged the services of a counsel, to expect him not to represent his competitor?
A few months back when one of our present clients transferred their trademarks portfolio to our firm; in response to the client’s email instructing the transfer, the previous counsel said that since the trademarks were registered, no documents were maintained by them and all the related documents were sent earlier to the client. The client has however refuted this claim and we had to obtain the documents from the records of the trademark office. Is the client not entitled to be provided with copies of documents as and when necessary applications are made?
Another client was not as lucky, whose earlier counsel refused to provide us with the trademark renewal receipt and with the unreliable infrastructure of the Indian trademark office, we were unable to trace the filing receipt, hence, without proof of renewal being filed, the client lost the mark and a fresh application had to be filed causing not only monetary loss but on the greater extent loosing the registration of the mark itself.
The practice of law in India is to be a noble profession and not treated as a business. The relationship between the counsel and the client is built on trust.
The Bar Council of India has framed standards of professional conduct and etiquette called the Bar Council of India Rules. Section II of the Bar Council of India Rules lays down the statutory duties of the advocate to the client. Some of the rules specifically relevant to IP practice are listed below.
1. An advocate should accept any case for a fee and should not refuse it without any justification.
2. An advocate should not withdraw from a case without giving due notice to the client. In case of withdrawal the unearned fee should be refunded.
3. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness.
4. An advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy that is likely to affect his client’s judgement in either engaging him or continuing the engagement.
5. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other.
6. An advocate shall not, at any time, be a party to fomenting of litigation.
7. An advocate shall not act on the instructions of any person other than his client or his authorised agent.
8. An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
9. Where moneys are received from a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses and should not divert any portion of the expenses towards fees.
10. Where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client, as early as possible.
11. An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party.
But we hardly hear of any clients taking the erring counsels to task; maybe because they don’t know how to take an action against someone who is supposed to be an honest officer and guardian of the law.
Complaints against advocates can be made with the State Bar Council where the advocate is enrolled. Unlike in the US, advocates in India can practice in any state once they enrol in any of the State Bar Councils. Upon receipt of the complaint, the Bar Council places it before its disciplinary committee which calls for the advocate to provide his response thereto. An enquiry is conducted within 30 days and the findings of the committee are summed up as the judgement. Against the order an appeal can be preferred before the Bar Council of India.
Conflict checks are seldom made by the counsels before accepting an engagement from a new client; in many cases it is an oversight or ignorance (ignorance of the law is no excuse) but in a few it is mere hunger for more revenue where ethics and rules are selectively forgotten.
The crash of many businesses during the early 21st Century clearly sent one message; ethics matter in business and the same principle should be applied to any profession including the legal profession. One can fool some people all the time, or all people some of the time, but ultimately one cannot fool all the people all the time. Indian IP Counsels needs to understand that if they do not practice ethics with their clients, it will cost them dearly at some point or the other.