In re Gouri G. Nair, D2016-07 (USPTO Dir. June 30, 2016)

Michael E. McCabe, Jr.Neglect, USPTO

Disposition: Two (2)-year suspension, stayed, with thirty (30) days of actual suspension, and a two-year period of probation, unopposed by the practitioner, predicated on identical discipline imposed by Supreme Court of California.  Final decision here.

Summary: A patent attorney received a two (2)-year stayed suspension, with thirty (30) days of actual suspension from practice before the USPTO and the requirement that she satisfy additional terms imposed by the Supreme Court of California, as reciprocal discipline arising from her neglect in connection with the representation of a married couple in a medical malpractice lawsuit. The practitioner filed a lawsuit seeking damages for the death of her clients’ infant daughter. In the course of the litigation, the attorney failed to secure and file timely verified discovery responses, failed to advise her clients of the need for verified discovery responses, and failed to oppose motions to compel and for terminating sanctions. The attorney’s inaction and failure to communicate with her clients ultimately resulted in the entry of a judgment of dismissal against her clients, depriving them of their medical malpractice remedy associated with the death of their infant daughter.

Related Case: In re Gouri Gopalan Nair, Case No. 13-O-17366 (Cal. May 2015)

Related to USPTO Practice?  No

Facts: This matter involved a Vermont-based patent attorney, Gouri G. Nair, who was also admitted to practice in California. Ms. Nair became a member of the California State Bar in 2010.

In August 2011, Ms. Nair agreed to take on a wrongful death case of behalf of a couple who had lost their infant daughter. After filing their complaint, Ms. Nair made a series of missteps including: failing to secure discovery responses from her clients and file them in a timely fashion, oppose a motion to strike the allegations of punitive and exemplary damages, appear at a case management conference, appear at the hearing for the motion to strike the allegations of punitive and exemplary damages or oppose or appear at hearings on a motion to compel discovery responses and a motion for terminating sanctions. In addition, she failed to keep her clients informed of significant developments in their matter or take steps to avoid foreseeable prejudice to her clients.

More specifically, on January 17, 2012, Ms. Nair filed a verified complaint in the Sacramento Superior Court, Case No. 34-2012-00117188, styled Moore v. Mart, et al. On February 27, 2012, counsel for the defendant physician propounded discovery to the plaintiff parents. Defendant physician also filed a motion to strike punitive and exemplary damage allegations, setting the hearing for March 27, 2012. Ms. Nair neither opposed the motion nor appeared at the hearing, resulting in the granting of the requested relief.

On March 14, 2012, Ms. Nair’s assistant, Jonny Morales, e-mailed Moore “to discuss some issues related to your case.” On April 2, 2012, Ms. Nair requested and was granted a two (2)-week extension up to and including April 17, 2012, to respond to outstanding discovery by defense counsel. On April 5, 2012, Moore and Wakefield separated, Moore relocating to Texas. Moore did not change either her phone number or e-mail address upon her relocating to Texas. Moore was the primary contact person during Ms. Nair’s representation. Wakefield did not provide Ms. Nair with a phone number or e-mail address.

On May 9, 2012, defense counsel sent to Ms. Nair a “meet and confer” letter prior to pursuing a motion to compel responses to the outstanding delinquent discovery. On May 14, 2012, Ms. Nair e-mailed Moore enclosing the meet and confer letter. No sense of urgency was communicated within the e-mail or the consequences that may evolve should the discovery not be timely responded to under oath. When Ms. Nair failed to timely provide discovery responses, defense counsel filed a motion to compel discovery responses on June 5, 2012, setting the hearing for July 12, 2012. On June 13, 2012, Ms. Nair e-mailed Moore to advise of the pending motion to compel and the need for response no later than June 20, 2012. On June 24, 2012, Moore e-mailed Ms. Nair to express her frustration in trying to reach her office since April.

On July 9, 2012, Ms. Nair e-mailed defense counsel and requested a two (2)-week continuance of the pending motion to compel explaining that she had only recently reconnected with her client who had moved out of state. Ms. Nair failed to oppose the motion and filed no motion on her own behalf to be relieved as counsel. As a result, the Court granted defendant’s motion on July 12, 2012, and ordered discovery responses to be served by the plaintiffs no later than July 23, 2012.

On July 26, 2012, the Case Management Conference was conducted. Ms. Nair failed to appear. The court ordered Ms. Nair to properly serve and join all party defendants no later than December 6, 2012, and to also meet and confer with defense counsel to select a trial date and Mandatory Settlement Conference date within sixty days of January 3, 2013. Ms. Nair received the court’s order. She failed to respond to the court ordered discovery, resulting in the filing of a terminating sanction motion by defense counsel on August 3, 2012.

On August 10, 2012, Ms. Nair shared the motion with Moore via e-mail and noted that their response to the motion was due no later than August 24, 2012. In her message, Ms. Nair failed to explain that Moore’s lawsuit could be dismissed if no response was provided pursuant to the July 12, 2012, order. Ms. Nair failed to oppose the motion and failed to appear at the hearing on terminating sanctions. The requested relief was granted on September 6, 2012, the court finding an abuse of the discovery process. In addition, the court ordered an award of $780 in sanctions from plaintiffs payable to defense counsel by September 20, 2012. As a result of this conduct, Moore v. Mart was dismissed on October 22, 2012.

The Supreme Court of California concluded that by failing to secure verified discovery responses from her clients and serve them on opposing counsel in timely fashion; by failing to oppose a motion to strike the allegations of punitive and exemplary damages; by failing to appear at a case management conference conducted July 26, 2012; by failing to appear at the hearing of the motion to strike the allegations of punitive and exemplary damages on March 27, 2012; and by failing to oppose or appear at the hearing on either the motion to compel discovery responses on July 12, 2012, or the motion for terminating sanctions on September 6, 2012, Ms. Nair intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of the California Rules of Professional Conduct. In addition, the Court found that Ms. Nair failed to keep her clients reasonably informed of significant developments in a matter in which she had agreed to provide legal services and failed to take reasonable steps to avoid reasonably foreseeable prejudice to her clients, in willful violation of California’s ethics rules.

The Court considered as aggravating circumstances the fact that Ms. Nair’s neglect cost her clients their medical malpractice remedy associated with the death of their infant daughter and caused significant harm to the clients. In addition, Ms. Nair committed multiple acts of misconduct, specifically failure to perform, improper withdrawal from employment, and failure to communicate significant event. In mitigation, the Court found that Ms. Nair had stipulated to misconduct and thereby demonstrated her cooperation with the State Bar and saved the State Bar’s resources. The Court concluded that a two (2)-year suspension, stayed, with thirty (30) days of actual suspension and two (2) years of probation was appropriate.

The USPTO Director filed a complaint for reciprocal discipline and order to show cause why the USPTO should not impose the same discipline imposed by the Supreme Court of California. Ms. Nair failed to respond. Consequently, the USPTO Director concluded that no genuine issue of material fact existed and that, pursuant to Section 11.24 of Title 37, the identical discipline imposed by California was warranted in the USPTO.