The USPTO’s Office of Enrollment and Discipline (OED), and state Bar Counsel in D.C., Virginia and Maryland, have broad powers to investigate allegations of ethical misconduct. The USPTO conducts its ethics investigations by the OED’s issuance of a “Request for Information and Evidence Pursuant to 37 C.F.R. § 11.22(f).” State bars have a similar right to investigate attorney misconduct.
Many clients are under the misconception that Bar Counsel can only investigate them for conduct relating to the practice of law. In fact, the OED and State Bar Counsel can and do investigate attorneys for any type of conduct that may reflect negatively on the attorney’s character or the integrity of the legal profession.
Attorneys and patent agents generally have a legal duty to cooperate with an OED or State Bar ethics investigation. Moreover, documents produced and statements made during a Bar investigation can be admissible in any subsequent formal disciplinary trial. For these reasons, attorneys and agents shouldexercise extreme care when responding to Bar ethics investigation.
Michael McCabe has represented scores of IP attorneys and patent agents in ethics investigations conducted by the USPTO Office of Enrollment and Discipline. Many of those investigations have resulted in the OED taking no action against his clients or issuing a non-public non-disciplinary warning.