D 0008/82 (Breach of rules of professional conduct) 24-02-1983
Téléchargement et informations complémentaires:
1. In disciplinary proceedings, a professional representative's obligations extend beyond merely supplying information pursuant to Article 18 of the Regulation on discipline for professional representatives ("the Regulation") to co-operating generally, since the proceedings also serve his interest, that is, to uphold or restore his professional dignity, within the meaning of Article 1(2) of the Regulation.
2. The Disciplinary Committee has the power to refer a matter to the Disciplinary Board to determine whether his conduct constitutes contempt of the Disciplinary Board that must be sanctioned.
3. The obligation to be truthful under Article 1(1), second sentence, of the Regulation applies not only to the exercise of the profession but also to statements in disciplinary proceedings.
Breach of rules of professional conduct
Unauthorised advertising
Obligation to supply information
Obligation to be truthful
Summary of Facts and Submissions
I. In 1981 an advertisement appeared in a patent journal drawing attention to a professional representative before the EPO ("the appellant") and his services in connection with obtaining European patents. This was brought to the notice of the Disciplinary Committee of the Institute of Professional Representatives before the EPO (cf. the Regulation on discipline for professional representatives, OJ EPO 1978, p. 91, hereinafter "the Regulation"). Referring to Article 8(1) of the Additional Rules of Procedure of the Disciplinary Committee (OJ EPO 1980, p. 176) and to all relevant provisions including the Code of Professional Conduct (OJ EPO 1980, p. 213), the Disciplinary Committee asked the appellant to present a written defence. After the expiry of the relevant time limit, the appellant replied by telex quoting a declaration made by him in national disciplinary proceedings relating to the same advertisement. That declaration includes the following passage: "... I can inform you that I do not know who placed the advertisement in question". The telex further contains only the allegation that another patent agent had also acted in the same way. The Rapporteur of the Disciplinary Committee considered that no opinion was expressed in that telex and by letter and by telephone asked the appellant to give one. The appellant apologised by telex, citing "pressure of other work" and said that he would reply on receipt of a copy of the advice of delivery of the first request for comments sent to him. A copy was communicated to him together with a reference to Article 8(3) of the Additional Rules of Procedure of the Disciplinary Committee. In reply a telex was received from the appellant's wife stating first that it had now been possible "to locate the documents on the basis of the advice of delivery signed by my cleaning woman". It was further stated "... it is totally incomprehensible to us how the advertisement submitted by you came about since such an advertisement was placed neither by my husband nor by me". For the rest, this telex too contained only accusations against other patent agents and the supposition that the advertisement might be "an act of revenge by someone who has been exposed in the past".
II. By decision of the Disciplinary Committee of the Institute of Professional Representatives before the European Patent Office dated 23 July 1982, a "reprimand" within the meaning of Article 4(1) (b) of the Regulation was issued against the appellant; an aggravating factor was that the appellant had attacked other colleagues instead of supplying the information he was under an obligation to give. The reasons for the Decision largely correspond to the headnote, which is as follows:
"It is contrary to the Code of Professional Conduct for a member of the Institute to place an advertisement in a journal offering his services for filing European patent applications. If the member contends that he did not place the advertisement, this claim must be duly substantiated."
III. On 25 August 1982 the appellant filed an appeal against that Decision. He contested the validity of the signatures under the contested Decision. In answer to the charge of advertising in breach of the professional code, he replied that he had already "... made it quite clear that there was no connection between him and the facts complained of". He claimed that the "in dubio pro reo" principle applied and that it was not up to him as the accused to prove his innocence. It was rather up to the disciplinary body to prove the facts on which it based its Decision. The appellant claimed that the contested signatures should first be validly repeated and that the contested Decision should be quashed and the proceedings terminated. He did not apply for oral proceedings.
IV. In two telephone conversations and two letters the Rapporteur of the Board of Appeal informed the appellant of the factual and legal as well as the procedural position. The appellant was thereby also informed of his obligation to be truthful (Article 1(1), second sentence, of the Regulation) and of his obligation to supply information (Article 18 of the Regulation) and also that the manner in which his case had been conducted at first instance might itself be a matter for consideration in disciplinary proceedings. In the Rapporteur's second letter dated 21 January 1983 the appellant was notified that the Board of Appeal would meet to take its decision on the matter on 24 February. The appellant was told that he still had the opportunity: (1) to give a written assurance, referring to the obligation to be truthful, to the Chairman of the Board of Appeal that he did not know who placed the advertisement; and (2) to give the Chairman authorisation vis-à-vis the publisher of the journal to enquire how the advertisement originated.
V. On the day the Board of Appeal took its decision (24 February 1983), letters of this nature were received. The letter corresponding to (1) above did not contain an unambiguous assurance that the appellant did not know who placed the advertisement.
Reasons for the Decision
1. The appeal complies with Article 22(1) of the Regulation and Article 6 of the Additional Rules of Procedure of the Disciplinary Board of Appeal and is therefore admissible.
2. The signatures under the contested decision are valid. Only the signature of the Chairman of the Disciplinary Committee could give rise to doubts. The initial of the first name and the full surname are typed directly before it. The initial of the first name in the signature underneath is legible. The surname however appears only as a mark in which one can still discern the first letter and which is, moreover, recognisably intended as a signature. That signature can be matched against the preceding type-written representation of the name. In several Contracting States there is no requirement that a signature be legible or recognisably composed of letters. It is enough that it serves to identify the signatory. Even under German law (cf. Entscheidungen des Bundespatentgerichtes - Decisions of the Federal German Patent Court - volume 24, page 132, especially the middle of page 133) the name mark could be recognised as a valid signature. The Board of Appeal has no doubt that such a signature would be binding in legal transactions.
3. Under Article 1(1), first sentence, of the Regulation, a professional representative before the EPO must "exercise his profession conscientiously and in a manner appropriate to its dignity". The Board of Appeal holds, in accordance with point 2 of the Code of Professional Conduct, that it is contrary to the dignity of the profession for members to try to attract clients through advertising. The appellant has, therefore, insofar as he placed the advertisement, infringed the rules of professional conduct within the meaning of Articles 1 and 4 of the Regulation.
4. The appellant's contention that "there is no connection between him and the subject-matter of the complaint", i.e. that he did not place the advertisement, does not accord with commonly experienced facts of life. Such a case is, however, conceivable. But the appellant is wrong to assume that the disciplinary bodies have to prove that the person given publicity in an advertisement also placed the advertisement. The purpose of the disciplinary procedure is not merely to sanction infringements of the rules of professional conduct but also to give professional representatives before the EPO the opportunity to justify themselves if the impression is given that they have acted in a manner prejudicial to the dignity of the profession. The mere fact that the disciplinary procedure also serves to establish innocence means that the professional representative concerned is obliged to co-operate in such proceedings. Furthermore, Article 18 of the Regulation expressly lays down the obligation to supply information. Already in the proceedings before the Disciplinary Committee, therefore, the appellant had the opportunity and the obligation to take positive steps to justify himself, to give an unambiguous assurance on his honour, and to make efforts himself to clear the matter up. In the proceedings at first instance at least the appellant did not do this. Having regard to the obligation of the professional representative concerned to co-operate in order to justify himself in disciplinary proceedings and his obligation to supply information pursuant to Article 18 of the Regulation, the Disciplinary Committee could assume, in accordance with commonly experienced facts of life, that the advertisement was placed by the person publicised therein.
5. The Disciplinary Committee decided that a warning was not sufficient as a disciplinary measure within the meaning of Article 4(1) of the Regulation and chose instead a reprimand. Assuming that the appellant did place the advertisement, if he had co-operated with the Disciplinary Committee by admitting that fact and assuring it that there would be no repetition, the disciplinary proceedings could quickly have been concluded with a less harsh measure and the appellant would not have run the risk of becoming caught up in infringement of further rules of professional conduct. In view of the manner in which the appellant conducted his case, there can be no criticism of the choice of the reprimand as the appropriate disciplinary measure. In the factual part of the first decision it was found that the direct contact between the complainant and the appellant within the meaning of point 5(b) of the Code of Professional Conduct had been unsuccessful. However, the file does not contain a copy of the letter making such an approach. The Board of Appeal is therefore not in a position to judge whether the approach was made in such a manner that the appellant should have responded.
6. In the proceedings before the Disciplinary Committee the appellant was far from being duly co-operative. The manner in which he reacted and the substance of his statements to that committee of his colleagues were improper. The members of the Disciplinary Committee exercise their hardly pleasant, honorary function in the interest of their profession. They are therefore entitled to expect proper respect from colleagues involved in proceedings, to whom every opportunity is of course given to justify their position. The appellant failed to conduct himself in an appropriate manner by not co-operating sufficiently.
7. The foregoing gives the Board of Appeal grounds for holding that even apparently moderately serious breaches of the Rules of professional conduct may justify the Disciplinary Committee referring the matter to the Disciplinary Board pursuant to Article 6(2) (c) of the Regulation if lack of co-operation on the part of the representative concerned delays the proceedings or makes them more difficult. In such cases it is for the Disciplinary Board to determine whether the conduct is to be regarded as contempt of the Disciplinary Board, that is a breach of the Rules of professional conduct within the meaning of Article 4(1) of the Regulation, and is to be sanctioned accordingly.
8. Just before the Board of Appeal took its decision, the appellant filed a statement which, in view of its content, cannot be regarded as made on the appellant's honour. The statement does not make it categorically clear that the appellant did not place the advertisement and does not know who did. The Board of Appeal therefore finds grounds for revoking the Decision of the Disciplinary Committee and for referring the matter to the Disciplinary Board of the EPO pursuant to Article 6(2)(c) of the Regulation. The Board of Appeal has the power to do that under Article 22(3) of the Regulation in conjunction with Article 111(1) EPC. Such referral is called for because not all breaches of the Rules of professional conduct within the meaning of Article 4(1) of the Regulation that may result from the known facts and any still to be investigated were considered at first instance. As the proceedings now stand it can be held, as the Disciplinary Committee has already rightly done, that the factual elements of unauthorised advertising are present. Furthermore, before the Disciplinary Committee the appellant infringed the obligation to supply information under Article 18 of the Regulation and before this Board of Appeal he has not yet satisfied that obligation with the last statement submitted by him. The further question remains open of the appraisal of the appellant's conduct during the attempts at conciliation with the complainant under point 5(b) of the Code of Professional Conduct, but more importantly of his conduct vis-à-vis the Disciplinary Committee.
9. It is also necessary to inform the appellant that his views on procedural provisions are wrong in law. Contrary to his view, a professional representative facing disciplinary proceedings has neither a right to remain silent (cf. obligation to supply information under Article 18 of the Regulation) nor a right to lie (cf. obligation to be truthful under Article 1(2), second sentence, of the Regulation). Disciplinary proceedings are not criminal proceedings but concern the rules of professional conduct. The representative complained of is obliged to supply information on matters relevant to the disciplinary proceedings (Article 18 of the Regulation) in a truthful manner (Article 1(1), second sentence, of the Regulation). The obligation to be truthful within the meaning of that provision relates not only to the exercise of the profession vis-à-vis the client and the EPO but also to disciplinary proceedings on the question of whether rules of professional conduct have been breached. Infringement of the obligation to be truthful would therefore also constitute breach of the Rules of professional conduct within the meaning of Article 4(1) of the Regulation.
10. As a professional representative before the EPO. the appellant claims to be an organ of the European patent system. Only two courses of conduct are appropriate to such a status. If, as he implies, he did not place the advertisement, he should have made an altogether unambiguous declaration on his honour and offered his fullest co-operation in clearing the matter up. If he did in fact place the advertisement, he has left it very late - but not too late - to admit the fact and to apologise for his conduct. It is unbecoming for a professional representative before the EPO to occupy the disciplinary bodies with such a matter in this way. It is not a proper exercise of rights but an abuse of the professional structures, i.e. also a breach of the Rules of professional conduct within the meaning of Article 4(1) of the Regulation.
11. A decision as to the costs of the proceedings pursuant to Article 27(2), second sentence, of the Regulation should be reserved until the final decision is taken.
ORDER
For these reasons, it is decided that:
1. The Decision of the Disciplinary Committee of the Institute of Professional Representatives before the European Patent Office dated 23 July 1982 is revoked.
2. The matter is referred to the Disciplinary Board of the European Patent Office.
3. The decision as to the costs of the proceedings is reserved until the final decision is taken.