OED Disciplines Patent Attorney Accused of Child Molestation

Michael E. McCabe, Jr.Suspension, USPTO Director DecisionsLeave a Comment

Not long ago, David C. Plache was a licensed physician, a licensed attorney, and a registered patent practitioner. Then came a 29-count indictment for child sex abuse, which ultimately led to a conviction for child endangerment. Plache subsequently lost his right to practice medicine and his state bar license was suspended for three years. On September 24, 2014, the USPTO Director rejected Mr. Plache’s plea for leniency and suspended him from practice before the Office for three years. See In re Plache, Proceeding No. D2014-20 (USPTO Dir. Sept. 24, 2014).

Child abuse symbolMr. Plache became licensed as an attorney in 1985. In 2004, he became licensed to practice medicine. The alleged child sex abuse started shortly thereafter in connection with his medical practice, according to various reports. Between 2005 and 2006, Mr. Plache allegedly fondled, in his medical office, three young male patients.

A pediatric endocrinologist, Mr. Plache was charged with 29 counts of sexual abuse. On the eve of trial, Plache entered into a plea deal with prosecutors, accepting a conviction for endangering the welfare of a child, a misdemeanor. As part of the plea, Plache also was required to permanently surrender his medical license. He avoided any jail time, however, and received a three-year term of probation.  He also was not required to register as a sex offender.

The Grievance Committee of the New York State bar subsequently charged Plache with ethical misconduct arising from the acts that led to his criminal conviction. On October 2, 2009, in the Matter of David C. Plache, the Supreme Court of the State of New York determined Mr. Plache violated the New York disciplinary code by engaging in illegal conduct that adversely reflected on his honesty, trustworthiness, and fitness to practice as a lawyer. Pursuant to the Supreme Court of New York’s order, Mr. Plache’s bar license was suspended for three (3) years, or until the termination of his probation, “whichever comes first, and until the further order of this Court.”

Pursuant to 37 C.F.R. § 11.24(a), the USPTO’s rule on reciprocal discipline, Mr. Plache had thirty days to inform the OED of the New York suspension. “Reciprocal discipline,” as we previously discussed in our September 23, 2014 post (click here), is a process for disciplining an attorney in a second jurisdiction after the attorney has been ethically disciplined by another jurisdiction. The disciplinary procedure set forth in Section 11.24 applies whenever a “practitioner” (i.e., any person within the scope of the USPTO’s disciplinary jurisdiction) is publicly disciplined on ethical grounds by another jurisdiction.

Mr. Plache failed to notify the USPTO about the public suspension in New York until December 1, 2013. The USPTO’s decision fails to explain the reason for Plache’s delay. It is also unclear why the OED itself failed on its own to uncover Plache’s suspension. Indeed, the OED is a member of the National Organization of Bar Counsel (NOBC), and as such regularly receives reports of discipline imposed in other jurisdictions.  The OED routinely cross-checks the names of those who have received discipline in other jurisdictions against the OED register of patent practitioners, which ought to serve as a “back stop” in the event a disciplined attorney fails to self-report. For whatever reason, the OED evidently failed to catch Mr. Plache’s suspension in New York.

On May 13, 2014, the OED Director filed a complaint against Mr. Plache for reciprocal discipline with the USPTO Director pursuant to 37 C.F.R. § 11.24(a). The USPTO Director thereafter issued a notice to Mr. Plache to show cause why the USPTO should not impose the same discipline imposed in New York.  Significantly, unlike non-reciprocal discipline cases in which the USPTO bears the burden of proof, in a reciprocal disciplinary proceeding, the practitioner bears the burden of submitting to the USPTO clear and convincing evidence sufficient to generate a genuine issue of material fact that the same discipline should not be imposed by the USPTO based on one or more of four limited grounds: (1) the prior proceeding lacked due process; (2) the prior proceeding suffered from an “infirmity of proof;” (3) imposing the same discipline would result in “grave injustice;” or (4) the practitioner was not, in fact, disciplined in the other jurisdiction.

In this matter, Mr. Plache argued that he voluntarily ceased practice before the Office prior to October 2, 2009 and thus the USPTO suspension period should commence on the date he self-reported (December 2013). Alternatively, he argued the USPTO suspension period should end when the New York suspension period ends. Mr. Plache claimed imposition of a three-year suspension starting in the present and running for a full three years would result in a “grave injustice.”

The USPTO Director rejected Mr. Plache’s arguments. The Director noted that voluntary cessation of practice before the Office “has no legal effect” on the imposition of reciprocal discipline. Furthermore, while Section 11.24(f) allows, in certain circumstances, for discipline to be imposed nunc pro tunc to the date a practitioner voluntarily ceases practice before the Office, one of many preconditions for such nunc pro tunc treatment to apply is “that the practitioner has complied with the requirement to give USPTO prompt notice of the state disciplinary action within 30 days.” Director Lee noted Mr. Plache’s “notice” to the Office was over four years late.

Mr. Plache also argued that, pursuant to the New York state suspension order, New York could reduce the term of the state suspension to less than three years under certain circumstances. This argument was unavailing in the USPTO, however, because the New York suspension order required a “further order of [the] Court” to end the state suspension and no such “further order” had been issued in New York.

Finally, Mr. Plache argued a full three-year suspension by the USPTO would pose “undue hardship.” The USPTO Director rejected this argument as well, noting Mr. Plache’s four-year delay in notifying the Office of his suspension in New York led to the USPTO’s delay in imposing federal reciprocal discipline.  The USPTO thus concluded Mr. Plache failed to meet his burden of proving, by clear and convincing evidence, a genuine issue of material fact as to why imposition of the same three-year suspension he received in New York was not warranted in the USPTO.

The burden on a practitioner to establish a genuine issue of fact under Section 11.24 is very high. In the six years since this Rule was promulgated, no practitioner has ever succeeded in convincing the USPTO Director to impose a lesser sanction than what was imposed in the other jurisdiction. Mr. Plache’s attempt to raise such an issue was particularly weak since the delay in the imposition of USPTO reciprocal discipline was entirely self-inflicted.

The sad end note to this case is the insidious nature of child abuse. Indeed, attorneys are not infrequently disciplined for conduct unrelated to the practice of law.  As reported, for example in our posts dated September 17, 2014 (click here), and August 29, 2014 (click here), the USPTO has disciplined practitioners for conduct such as domestic violence, soliciting sex with children, and other acts of moral depravity.  Child abuse can be added to the list.  For information about child abuse prevention, contact The Children’s Bureau.

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