Domestic Violence Conviction Nets Attorney USPTO Reprimand

Michael E. McCabe, Jr.Reciprocal Discipline, USPTO Director Decisions0 Comments

canstockphoto12804081 domestic violenceIn a reciprocal discipline matter, the USPTO publicly reprimanded a successful and experienced patent attorney following his criminal conviction for domestic battery. See In re Gortler, No. D2013-06 (USPTO Dir.).

Attorney Hugh P. Gortler’s problems began in 2011, soon after he told his wife he wanted a divorce. See In re Gortler, Case Nos. 11-C-2562-DFM (Cal. Bar Ct. Oct. 29, 2012). The couple fought, the fight turned physical, and Mr. Gortler ultimately was charged with two counts of child abuse and one count of felony criminal threats.

In 2012, Gortler accepted a plea deal with the district attorney in which he agreed to enter a guilty plea of one misdemeanor count of spousal abuse in violation of California Penal Code § 243(e)(1), which prohibits battery against a current or former spouse, a person with whom the defendant is cohabiting, or the defendant’s child. In California, domestic battery is punishable by imprisonment in a county jail for a period of not more than one year. The attorney was subsequently convicted of misdemeanor domestic battery.

Following Mr. Gortler’s criminal conviction, the California State Bar instituted disciplinary proceedings. The issues for trial were whether the conviction involved a crime of moral turpitude or other misconduct warranting discipline, and if so, the appropriate sanction.  The State Bar Court decision provides graphic detail of a family dispute spinning out of control, leading to Mr. Gortler’s battery of his spouse. During a three-day evidentiary hearing. Mr. Gortler’s wife testified about how supportive her husband was with the family and that he was the sole breadwinner. Mr. Gortler’s wife, however, further testified that Mr. Gortler placed his hands around her throat and made a statement suggesting he “might kill her.”  Ultimately, however, the State Bar Court concluded the evidence was insufficient for the Bar to meet its burden of proof by clear and convincing evidence, finding the wife’s testimony not credible.

Notwithstanding the Bar’s inability to prove Mr. Gortler engaged in more serious criminal conduct, the State Bar Court observed that the misdemeanor criminal conviction was “conclusive proof” that the attorney committed all of the acts necessary for the offense.   Mr. Gortler’s admitted action of grabbing his wife, in a willful and offensive manner, and then pushing her away, constituted criminal battery. The Bar Court further determined that this crime, while not constituting an act of moral turpitude, is “conduct warranting discipline.”

The issue remaining for trial was what discipline was warranted.  The Bar Court found an aggravating factor was the fact that Mr. Gortler was unremorseful for his conduct. In mitigation, the Bar Court found that Mr. Gortler had a 16-year history of discipline-free practice, which was entitled to “substantial weight” under California law. In further mitigation was the fact the attorney received counseling and that this was, evidently, an isolated incident that was not likely to recur.

Disciplinary counsel for the State Bar sought Mr. Gortler’s disbarment or a lengthy suspension. The State Bar, however, failed to present any case law supporting such a punishment.  Ultimately, the attorney received a “public reproval with conditions” from the State Bar Court of California. Such discipline is similar to a public reprimand at the USPTO.

After receiving information about the discipline imposed in California, the OED Director filed with the USPTO Director a Complaint for Reciprocal Discipline Pursuant to 37 C.F.R. § 11.24. Section 11.24 sets forth a specific procedure for imposing discipline whenever an individual subject to the disciplinary jurisdiction of the USPTO has been ethically disciplined by another jurisdiction. The USPTO Director issued the attorney a notice and order to show cause why the same discipline imposed in California should not be imposed by the USPTO.

In reciprocal discipline cases, the USPTO Director is required to impose the same discipline unless the attorney, within forty days of receiving notice from the USPTO, presents admissible evidence sufficient to generate a genuine issue of material fact why the same public discipline imposed in the other jurisdiction should not be imposed in the USPTO.  The USPTO Director and OED Director lack standing to seek greater discipline.

Section 11.24(d) provides four limited grounds for challenging imposition of reciprocal discipline: (1) lack of due process in the prior proceeding; (2) an “infirmity of proof” in the prior proceeding; (3) imposition of the same disciplinary sanction would result in “grave injustice;” and (4) the practitioner was not, in fact, disciplined in the other jurisdiction.

Mr. Gortler failed to file any response to the complaint for reciprocal discipline. Accordingly, the USPTO Director issued a final order publicly reprimanding Mr. Gortler.

This case serves as a reminder that attorneys are subject to discipline for their personal misbehavior, including criminal conduct. Discipline is not limited to misconduct in the practice of law. Furthermore, the burden of proving the practitioner should receive lesser discipline from the USPTO is extremely difficult to meet.  To be sure, since Section 11.24 was promulgated on September 15, 2008, no practitioner has ever successfully challenged imposition of the identical sanction by the USPTO.  The USPTO’s record in reciprocal discipline cases under Section 11.24 — 77 wins and 0 losses for the Office.

Domestic violence is not limited to professional football players.  Attorneys are not immune from such conduct, either as aggressor or victim.  October is Domestic Violence Awareness Month.  To find out more, contact the National Coalition Against Domestic Violence.

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