Withdrawing from Representation Before the Israel Patent Office

withdraw 2  withdraw

Aharon Demri, Myrr & Frankincense Fragrances LTD and Vered Arbel opposed Israel Trademark No. 247320 to Eliyahu Twitto.

The mark in question is an image of a woman (da Vinci?) and the words Myrr & Frankincense in Hebrew. The mark is reproduced below.

Myrr & Frankincence

After the opposers withdrew the opposition, the Applicant requested costs for having to fight the opposition. Before responding to the costs, the Opposer’s counsel, Advocates David Walberg &Larry Goldstein requested to withdraw from representation in this case. The request was based on them having lost contact with the clients. They claimed to have tried both telephoning and writing to the client without success.

Apparently hedging their bets, they added a footnote with alternative responses allegedly supplied by the Opposer.

Ruling

The commissioner, Assa Kling ruled that when deciding on whether to accept a request to release an attorney from his representation, it is necessary to find a balance between the responsibilities of the lawyer towards his client on one hand, and the freedom of the lawyer to provide services to whom he likes on the other. Furthermore, one has to bear in mind the public interest that is inherent in the attorney -client relationship. To ensure that the balance is maintained, Regulation 473b of the Civil Procedure Code 1984 and Section 17 of the Criminal Code entrusts the court with the decision regarding whether or not to allow the attorneys to resign from a proceeding.  The commissioner ruled that the same authority is entrusted to him regarding procedures before the patent office in general, and oppositions in particular.

Section 13 of the General Attorney Bar Laws (Ethics Code for Lawyers) 1986 defines the minimum standards for withdrawing from representation:

13 (a). If a lawyer takes on a case, be is not entitled to withdraw unless either:
there are differences between the course of action that the lawyer considers appropriate and that which his client wants, or
there is a legal reason that impairs the lawyer acting, or 
there is a conflict of interest, or
the client does not pay costs or expenses, or
some other reason justifying withdrawing.  

(b) if a lawyer decides to withdraw from representation prematurely, he must, without delay, inform his client, and, to the extent that he is able, he must stop the representation  in a manner that doesn’t prejudice his client’s rights.

(c) in an ongoing precedure before the courts, a lawyer may not withdraw unless doing so is in accordance with all legislation.

In accordance with the above, Circular 15-2012 from 20 November 2012 requires one withdrawing from representation to warn the client of the consequences of the withdrawal.

The attorney – client relationship is not a Catholic marriage, and one cannot oblige an attorney to represent a client for ever, particularly in civil matters. Nevertheless the attorney has to provide full details of his attempts to contact the client to convince the court that due care was taken not to damage the client’s affairs.

In this case, the attorneys merely indicated that they had lost contact and had tried phoning and writing. There was no evidence  submitted with the request to detail these attempts, and no indication that there was an attempt to inform the client of the consequences of withdrawing.  Finally, the Commissioner expressed his lack of comfort with the stage in the proceeding whereat the client disappeared, i. e. where costs are being ruled.

The request to withdraw was refused.

Opposition to Israel Trademark No. 247320 to Twitto, before Commissioner of Patents and Trademarks, 9 May 2013.

COMMENT

I have a certain sympathy with the attorneys here.  I have had (and still have) clients that are pains in the rear end, and clients that are incommunicado at the most inconvenient moment. Probably the worst case of this was a client who initiated a trademark opposition at the Patent Office with me, and a related Court action in the Jerusalem court using different representation and was impossible to contact since he went to participate in Big Brother. We could see the X$%^& on TV but couldn’t get instructions from him…

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