Code of Professional Conduct for Patent Agents and Trademark Agents Regulations — (a)
COMMENTARY An essential element of reasonable notice is notification to the client unless the client cannot be located after reasonable efforts are made. No hard and fast rules can be laid down as to what constitutes reasonable notice before withdrawal and how quickly an agent may cease acting after notification will depend on all relevant circumstances. The governing principle is that the agent must protect the client’s interests to the best of the agent’s ability and must not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage. As a general rule, the client must be given sufficient time to retain and instruct a replacement agent, including filing an appointment of agent in the relevant CIPO office. Every effort must be made to ensure that withdrawal occurs at an appropriate time in the prosecution of an application, in keeping with the agent’s obligations. The relevant CIPO office, opposing parties, foreign agents and any others directly affected by the withdrawal must also be notified of the withdrawal. Unless a client consents, an agent must not summarily and unexpectedly withdraw their services from that client in order to avoid a conflict arising from accepting a new second client. Note that disclosure is an essential requirement for obtaining the first client’s consent. If it is not possible to provide the first client with adequate disclosure because of the confidentiality of the information of the second client, the agent must decline to provide services to the second client. When an agency firm is dissolved or an agent leaves an agency firm to practise elsewhere, it usually results in the termination of the agent-client relationship between a particular client and one or more of the agents involved. In such cases, most clients prefer to retain the services of the agent who they regarded as being in charge of their business before the change. However, the final decision rests with the client and the agents who are no longer retained by that client must act in accordance with the principles set out in this rule and, in particular, must try to minimize expense and avoid prejudice to the client. The client’s interests are paramount and, accordingly, the decision as to whether the agent will continue to represent a given client must be made by the client in the absence of undue influence or harassment by either the agent or the agency firm. That may require either the departing agent or the agency firm, or both, to notify the client in writing that the agent is leaving and advise them of the options available to have the departing agent continue to act for them, to have the agency firm continue to act for them or to retain a new agent or new agency firm to act for them. On discharge or withdrawal, an agent must (a) notify the client in writing, stating (i) that the agent has withdrawn, (ii) the reasons for the withdrawal, and (iii) in the case of a hearing, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain a new agent promptly; (b) deliver to the client all papers and property to which the client is entitled; (c) subject to any applicable trust conditions and undertakings — or, in Quebec, subject to any applicable conditions for the preservation in trust of any monies or other property entrusted to the agent by a client and to any applicable undertakings —, give the client all relevant information in connection with the matter; (d) account for all funds of the client held at that time or previously dealt with, including the refunding of any remuneration not earned during the representation; (e) promptly render an account for outstanding fees and disbursements; (f) cooperate with the successor agent in the transfer of the file in a manner that minimizes expense and avoids prejudice to the client; and (g) comply with the applicable rules of the CIPO office or offices involv