January 01, 2018

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith R. Fisher, Christina Houston

Professional Responsibility

PTO Pilot Diversion Program for Non-Serious Attorney Misconduct

By Keith R. Fisher, National Center for State Courts

For licensed patent lawyers, the U.S. Patent & Trademark Office (PTO) has inaugurated a new pilot program allowing practitioners suffering from physical, mental, or emotional health issues who engaged in minor misconduct to avoid formal discipline by entering into a diversion agreement and affirmatively undertaking specific remedial steps. To be eligible for diversion, the misconduct must not involve misappropriation of funds or dishonesty, deceit, fraud or misrepresentation; result in or likely result in substantial prejudice to a client or other person; constitute a “serious crime” under PTO regulations; or be part of a pattern of similar misconduct or be of the same nature as misconduct for which the practitioner has been disciplined within the past five years. The two-year pilot program, implemented by the PTO’s Office of Enrollment and Discipline, follows a trend in many jurisdictions allowing diversion for minor misconduct, as shown in data collected by the ABA Standing Committee on Professional Discipline.

Adopting Erroneous Avvo Profile Subjects Lawyer to Discipline for Misleading Advertising

By Keith R. Fisher, National Center for State Courts

The South Carolina Supreme Court issued a public reprimand to a lawyer who, among other misconduct, touted inaccurate information provided about him in his Avvo profile. Though the lawyer had nothing to do with creating the erroneous Avvo profile, he effectively endorsed what he knew to be misleading information by adopting the profile in advertising and solicitation materials he generated. By affirmatively using the profile to market legal services, the court said, the lawyer became ethically responsible for its content and required to ensure that it complied with applicable State rules of professional conduct.

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.