Code of Professional Conduct for Patent Agents and Trademark Agents Regulations — Code of Professional Conduct for Patent Agents and Trademark Agents Regulations
COMMENTARY Disclosure and Consent Disclosure is an essential requirement for obtaining a client’s consent. When it is not possible to provide the client with adequate disclosure because of the confidentiality of the information of another client, the agent must decline to act. Disclosure means full and fair disclosure of all information relevant to a person’s decision in sufficient time for the person to make a genuine and independent decision and the taking of reasonable steps to ensure that the client understands the matters disclosed. The agent must therefore inform the client of the relevant circumstances and the reasonably foreseeable ways that the conflict of interest could adversely affect the client’s interests, including the agent’s relationships with the parties and any interest in or connection with the matter. While this rule does not require that an agent advise a client to obtain independent legal advice about the conflict of interest, the agent must recommend such advice in some cases to ensure that the client’s consent is informed, genuine and uncoerced, especially if the client is vulnerable or not sophisticated. Following the required disclosure, the client can decide whether to give their consent. As important as it is to the client that the agent’s judgment and freedom of action on the client’s behalf not be subject to other interests, duties or obligations, in practice that factor may not always be decisive. Instead, it may be only one of several factors that the client will weigh when deciding whether to give the consent referred to in the rule. Other factors may include, for example, the availability of another agent of comparable expertise and experience, the stage that the matter or proceeding has reached, the extra cost, delay and inconvenience involved in engaging another agent and that agent’s lack of familiarity with the client and the client’s affairs. Consent in Advance An agent may be able to request that a client consent in advance to conflicts of interest that might arise in the future. As the effectiveness of such consent is generally determined by the extent to which the client reasonably understands the material risk that the consent entails, the more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. A general, open-ended consent will ordinarily be ineffective because it is not reasonably likely that the client will have understood the material risks involved. If the client is an experienced user of the agency services involved and is reasonably informed regarding the risk that a conflict of interest may arise, such consent is more likely to be effective, particularly if, for example, the client is independently represented by legal counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. While not a prerequisite to advance consent, in some circumstances it may be advisable to recommend that the client obtain independent legal advice before deciding whether to provide consent. Advance consent must be recorded, for example in a retainer letter. Implied Consent In some cases consent may be implied rather than expressly granted. The concept of implied consent is applicable in exceptional cases only. Governments, chartered banks and entities that might be considered sophisticated consumers of agency services may accept that agents may act against them in unrelated matters if there is no danger of misuse of confidential information. The more sophisticated the client as a consumer of agency services, the more likely that an inference of consent can be drawn. The mere nature of the client is not, however, a sufficient basis upon which to assume implied consent. The matters must be unrelated, the agent must not possess confidential