In re John Anthony Franczyk, Proc. No. D2016-22 (USPTO Dir. Dec. 5, 2016)

Michael E. McCabe, Jr.Fail to Cooperate, Neglect, USPTO

Disposition:  One-year suspension predicated upon identical discipline imposed by the Supreme Court of Illinois.  Final decision here.

Summary:  A patent practitioner was suspended by the USPTO for one year as reciprocal discipline arising from upon a one-year suspension imposed by the Supreme Court of Illinois for failing to act with reasonable diligence and promptness in representing a client, failing to keep a client reasonably informed about the status of a matter, failing to refund the unearned portion of the client’s fee, and failing to cooperate with the state disciplinary counsel’s investigation into his conduct.

Related case: In re John Anthony Franczyk, M.R. 27604 (Ill. Nov. 17, 2015)

Related to USPTO Practice? No

Facts: This matter involves a USPTO-registered patent attorney with nearly 30 years of experience.  On May 6, 2013, the attorney and Phillip Fowler (“Fowler”) agreed that the attorney would represent Fowler and his business partners in the formation of a hair salon business that Fowler and Fowler’s business partners wanted to open in Chicago, Illinois (“the salon”).  The attorney and Fowler agreed that the representation would include creating a Limited Liability Company (“LLC”) for the salon, assisting in negotiating a lease for the salon, assisting the partners in departing from their then-current employer (a competing hair salon), obtaining a Chicago business license for the salon, as well as other legal matters related to the creation of the salon business.

On May 7, 2013, Fowler paid the attorney the $1,000.  Over the course of the next six (6) months, the attorney failed to provide any legal services for the client.

On November 14, 2013, Fowler emailed the attorney about his apparent lack of action with respect to the creation of the salon business. In that email, which the attorney received, Fowler stated that he was concerned that nothing had been done in six months to advance the creation of their business, that he hadn’t heard from the attorney since the initiation of the attorney-client relationship, and asked Respondent whether he intended to continue with the representation of the salon.

On December 9, 2013 and January 13, 2014, the attorney replied to Fowler’s November 14, 2013 email and indicated that had been experiencing undescribed personal challenges from which he was still recovering, and would refund the unused portion of Fowler’s fee to him as soon as he could “finalize things with [his] bookkeeper.”  After receiving Respondent’s January 13, 2014 email, Fowler filed a complaint with the ARDC.

The attorney was subsequently charged by the Illinois Attorney Registration and Disciplinary Commission with failure to act with reasonable diligence and promptness in representing a client in a business formation matter, failing to keep a client reasonably informed about the status of the matter, failing to refund the unearned portion of the client’s fee, and failing to cooperate with the IARDC’s investigation into his conduct.  He failed to timely respond to the complaint, and thus the allegations were deemed admitted.  In November 2015, the Supreme Court of Illinois ordered Mr. Franczyk suspended from practice for one year and until further order of the court

The USPTO Director served Mr. Franczyk by publication with a disciplinary complaint and order to show cause why the USPTO should not impose an identical suspension as reciprocal discipline.  Mr. Franczyk failed to respond to the USPTO’s notice and order.

Consequently, on December 5, 2016, the USPTO Director issued an Order imposing reciprocal discipline pursuant to 37 C.F.R. § 11.24 and a one-year suspension for violation of 37 C.F.R. Section 11.804(h), which makes it unethical for a practitioner to be disciplined on ethics grounds by another jurisdiction.