In re Christopher L. Persaud, Proc. No. D2014-34 (USPTO Dir. Mar. 31, 2016)

Michael E. McCabe, Jr.Misrepresentation, UPL, USPTO

Disposition: Exclusion from practice before the USPTO resulting from the practitioner’s disbarment from the Supreme Court of California. The USPTO Director rejected practitioner’s challenge to reciprocal discipline.

Summary: A patent attorney with a prior disciplinary history was investigated by California disciplinary authorities for possible ethics violations. To resolve the matter, the attorney consented to disbarment. The USPTO Director thereafter instituted a reciprocal disciplinary procedure pursuant to 37 C.F.R. § 11.24 seeking imposition of identical discipline to that imposed in California. The practitioner asserted genuine issues of material facts existed that warranted lesser discipline. The USPTO Director held that the practitioner failed to raise a genuine issue of material fact that: (i) he was denied due process in California, (ii) the California proceeding suffered from an infirmity of proof, or (iii) imposition of identical discipline by the USPTO would result in a grave injustice. Accordingly, the USPTO Director ordered the practitioner’s exclusion from practice before the USPTO.

Related Cases: In re Christopher Leslie Persaud, No. S200588 (Cal. June 28, 2012); In re Christopher Leslie Persaud, No. S210771 (Cal. July 24, 2013); Christopher Persaud v. Director, United States Patent and Trademark Office, No. 1:14-cv-1790 (E.D. Va. Dec. 31, 2014)

Related to USPTO Practice? No

Facts: Mr. Persaud was a patent attorney admitted to practice in the State of California in 2009. Mr. Persaud had a history of disciplinary misconduct that commenced shortly after he began practicing law.

Mr. Persaud started his own practice where he focused on loan modification work. On June 28, 2012, Mr. Persaud was suspended from the practice of law for three (3) years by Order of the California Supreme Court. See In re Christopher Leslie Persaud, No. S200588 (Cal. June 28, 2012).

Mr. Persaud continued to be investigated by the California Bar for additional misconduct arising from his loan modification practice, in addition to failing to abide by the terms of the Court’s 2012 suspension order. By Order of the Supreme Court of California dated July 24, 2013, Mr. Persaud was disbarred. See In re Christopher Leslie Persaud, No. S210771 (Cal. July 24, 2013). The disbarment Order was based upon Mr. Persaud: (1) failing to perform competently on behalf of clients; (2) failing to communicate adequately with clients; (3) improperly withdrawing from employment with clients; (4) the unauthorized practice of law; (5) collecting illegal fees; (6) failing to return unearned or illegal fees totaling approximately $300,000; (7) failing to comply with Rule 9.20(c) of the California Rules of Court; and (8) making multiple misrepresentations of fact in several declarations submitted to the California Bar regarding his alleged compliance with the requirements of a suspended attorney.

The USPTO Director issued a show cause order why Mr. Persaud should not receive the same discipline (disbarment) imposed in California. Mr. Persaud submitted evidence and argument to oppose identical discipline by the USPTO. The USPTO Director determined that the evidence was not persuasive and failed to raise any genuine issue of material fact on the limited grounds upon which a practitioner may challenge reciprocal discipline.

On December 1, 2014, the General Counsel, on behalf of the Director of the USPTO, issued a Final Order Under 37 C.F.R. § 11.24 excluding Mr. Persaud from the practice of patent, trademark, and other non-patent law before the USPTO.

On December 31, 2014, Mr. Persaud petitioned the United States District Court for the Eastern District of Virginia for review and reversal of the Final Order. See Christopher Persaud v. Director, United States Patent and Trademark Office, No. 1:14-cv-1790 (E.D. Va.).

On July 22, 2015, the District Court entered an Agreed Order dismissing the action without prejudice so that the USPTO Director could “review and, if necessary, clarify USPTO’s December 1, 2014 ‘Final Order Under 37 C.F.R. § 11.24.’” In accordance with 37 C.F.R. § 11.24 and that Agreed Order, on September 2, 2015, the USPTO Director provided notice to Mr. Persaud giving him an opportunity to submit supplemental information and allowing the OED Director that the USPTO Director to review and, if necessary, clarify its Final Order. Mr. Persaud provided additional information to the USPTO and challenged imposition of reciprocal discipline on two grounds: (1) grave injustice; and (2) denial of due process.

The Director’s opinion explained that a respondent may seek to defeat reciprocal discipline by showing by clear and convincing evidence that a genuine issue of material fact exists as to whether a “grave injustice” would result under 37 C.F.R. § l l.24(d)(l)(iii).

Mr. Persaud raised rehabilitative steps he had taken since the imposition of his disbarment in California and certain mitigating circumstances surrounding his misconduct to argue that his reciprocal exclusion under§ 11.24 would be a grave injustice.

The USPTO Director held that the “grave injustice” showing required to avoid reciprocal discipline is a high standard. See In re Thav, 852 F. Supp. 2d 857, 861 (E.D. Mich. 2012). Furthermore, the Director reasoned that reciprocal discipline proceedings do not provide Respondent “with an opportunity for a de novo review of what sanction should have been imposed in California.” See, e.g., In re Roman, 601 F.3d 189, 194 (2d Cir. 2010) (declining, in context of reciprocal discipline, to review de novo what sanction should have been imposed by the originating jurisdiction); In re Kramer, 282 F.3d at 727 (“In reviewing a reciprocal disbarment, we do not re-try an attorney for misconduct.”). The Director found that Mr. Persaud stipulated to the misconduct and disbarment. The stipulated misconduct involved misconduct as to 47 different clients and violations of court rules demonstrating as a whole that “[s]ince becoming a member of the State Bar, Respondent has been unable to conform his conduct to the ethical strictures of the profession.”

In addition, the California disciplinary standards are clear that disbarment is within the range of allowable penalties for the attorney misconduct at issue in this case. The Director further found that Mr. Persaud’s rehabilitative efforts did not render his reciprocal exclusion from the practice of patent law a grave injustice.

The Director further found that Mr. Persaud had not been denied due process. The USPTO Director noted that Mr. Persaud had been represented throughout the California proceedings by counsel, and that he had been afforded an opportunity to be heard and stipulated that disbarment was warranted. Although Mr. Persaud attempted to take issue with certain of the findings made by the California court, as the USPTO Director noted, Mr. Persaud had agreed to those findings in his stipulation for disbarment. As such, he could not be heard to argue that those stipulated findings were erroneous or demonstrated a denial of due process.

Because Mr. Persaud was unable to raise any genuine fact issue as to why the identical discipline should not be imposed by the USPTO, the USPTO Director ordered that a reciprocal exclusion was appropriate.