Mission Impassable: Moral Character Can Block Applicants From USPTO Bar Membership

Michael E. McCabe, Jr.Office of Enrollment and Discipline, Patent Ethics, USPTO OEDLeave a Comment

The Wolf: “Just because you are a character doesn’t mean that you have character.” – Pulp Fiction

canstockphoto17079453So you say you want to become registered to practice before the USPTO? You possess all the requisite technical skills. You did well in law school. You recently passed the Patent Bar Exam with flying colors. Congratulations. So what’s the problem?

Well, there still remains some of those troublesome squirm-in-your-seat, “Yes” answers you gave on the Character and Fitness application. Remember, those intrusive, obnoxious (are they allowed to ask me?), “have you ever been . . .” questions that delved into seemingly every crevice of your life.

Questions like:

“Have you ever been “cited for, arrested for, charged with, or convicted of any violation of any law?

Ugh – Yes – but isn’t that unfair to ask?

Or another Bar favorite:

“Have you ever defaulted on any debt?”

Well, yea- but it was my damn ex-husband’s fault; he ruined me.

How about:

“Have you ever been a named party to any civil action?”

But that was years ago, and we settled.

And my personal favorite:

“Have you ever been cited for, arrested for, convicted of, or charged with any moving traffic violation?”

Seriously?

canstockphoto9017013Fitness to Practice

Just about the time when you had put those uncomfortable answers along with the requisite “Complete Explanation” out of your mind, you receive an unexpected surprise: a certified letter in your name from your friends at the Office of Enrollment and Discipline.

At this point, your character and fitness to practice law are now under the hot lights of scrutiny by the very folks who have the power and discretion to let you “Pass Go” or who can deny your application for registration. For wannabe patent attorneys who find themselves in this predicament, the mind tends to wander – what should I tell my employer? What if I get rejected? Did I just waste the past ___ years of my life?

There is a reason the Bar—whether it is the USPTO or your local State Bar—asks these types of questions. As a state-barred attorney or a registered patent attorney, the government grants you enormous powers and privileges. You have a fiduciary responsibility to your clients. You handle and are responsible for other people’s money and property. You are placed in a position of trust and confidence shared by few in society. With these powers comes great responsibility. With that in mind, the Bar’s Character and Fitness process, intrusive and obnoxious as it can be, is ordinarily the last line of defense before the Government hands you your law license and lets you loose on the public.

Conduct That May Be Cause For OED’s Concern

For prospective Patent Bar members, the Office of Enrollment and Discipline typically consider the following conduct as cause for further inquiry before making a recommendation on an applicant’s character and fitness:

• Unlawful conduct – even conduct that you may consider minor – including speeding or other traffic infractions, underage offenses, alcohol consumption, drug charges, resisting arrest, disorderly conduct, to name a few.

• Academic or employment related misconduct.

• Neglect of financial responsibilities, such as failure to pay taxes, loans, and similar obligations.

• Violations of any court order – common among these are failure to pay child support, issuance of restraining orders, and misconduct that typically arises from domestic disputes or family law matters.

• Conduct evidencing mental or emotional instability.

• Any conduct showing possible drug or alcohol abuse or addiction – including drunk in public, open container violations, DUI/DWI, or underage drinking charges.

watch step risk mgmtHandling The Character Investigation

Just because your character is being investigated does not necessarily mean that all is lost. Indeed, it is the Bar’s job to gather the facts. Often, the “Yes” answers can be qualified and explained in a way that is both reasonable and makes sense–and will get you admitted.

In dealing with the OED, rule number 1 is complete honesty. Staff attorneys at the OED are skilled at reading between-the-lines, and they exercise both common sense, as well as use other investigatory tools, in determining whether an applicant is being completely candid.  If the investigator believes that the applicant is giving half-truths or deceptive or misleading responses, at the very least this could invite further inquiry. And if the OED staff determine that the applicant is affirmatively lying, well then that is likely the death knell of the application.

Rule number 2 is documentation.  Gather documents in support of your responses. Often times, depending on the nature of the inquiry, relevant documents may shed further light on the conduct in question. Those documents could be exculpatory and may be invaluable in helping the OED staff investigators to understand not only what the conduct in question was, but why it occurred and, most importantly, why the conduct being investigated is not likely to repeat itself.

Full disclosure in response to the “Yes” questions will be considered by the OED in light of a number of variables, including:

• Age of the applicant at the time of the conduct in question.

• Recency or remoteness of the conduct.

• Seriousness of the conduct.

• Number of instances of conduct causing concern.

• Rehabilitation when the matter relates to drug or alcohol dependency.

• Remediation when the matter relates to financial matters.

• Character references from individuals who know the applicant and are aware of the issues that are the subject of the inquiry.

• “Owning” up to the conduct, including genuine remorse and recognition of the possible “problem” evidenced by the conduct under investigation.

• Candor and attitude during the admissions and investigatory process.

Substance Abuse and Mental Health

One final word about drugs and alcohol-related convictions.  The OED is not going to necessarily deny admittance because the applicant has used drugs or alcohol, or is a recovering alcoholic or drug addict. The focus of the investigation is whether the applicant is currently abusing alcohol or illicit drugs, and whether, in turn, such use or abuse, addiction, or mental health condition presently impairs the applicant’s ability to practice law.

Many applicants with a history of substance or alcohol-related arrests, addiction issues, or mental health conditions, are required to demonstrate to the OED whether they are actively or currently being treated for their condition.  Evidence of treatment could include, for example, documents from a qualified mental health or drug or alcohol professional confirming the status of the applicant’s health condition, recovery efforts, general health, and assessment of their competency to practice law.  Self-treatment, on the other hand, without a supporting cast of health care providers or other support groups (such as 12-step programs), may raise questions regarding the applicant’s present ability to practice.

Persistence Pays

The OED has a job to do in screening applicants for the protection of the public. Sometimes, their investigations require time to collect and review pertinent documents so that they can make an informed recommendation on whether or not to admit an applicant, or possibly to defer admission.

Be persistent, and do not give up.  Patience also helps–the OED will not look favorably on someone who tries to rush the investigatory process.

The applicant does himself a huge favor by being fully cooperative in the process and handling the matter professionally.  Such professionalism is evidence of character, which is, after all, at the heart of the character and fitness inquiry.

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