It was Groucho Marx who quipped that military intelligence is a contradiction in terms. I don’t know who it was that first pointed out that the dictionary lists human intelligence, animal intelligence and military intelligence in that order. I heard it from an uncle.
Similar remarks could be applied to legal ethics.
There is a lot of discussion by philosophers on the difference between law and ethics. There is a concept called Legal Ethics. This is really a type of law applying to lawyers. It should be considered as minimum legal standard of behaviour not as the standard at which the lawyer is behaving ethically.
I got to think about this following Professor Phillips lecture “A time to sow and a time to reap” that he generously gave at our PCTea Party last week. Jeremy quoted Mr Justice Birss’ ruling in a UK case where a patent attorney was sued for giving poor advice. In the case in question, Baillie & Others v Bromhead & Co (a Firm) & Others  EWHC 2149 (Ch), 2 July 2014, at para , Judge Birss stated:
“Although I find for the defendants in this action, [the defendant patent attorney] should not regard this as a vindication of his professionalism. A number of the claimants’ criticisms … were well founded. The action has exposed inexplicable and negligent advice given by him. …”
What the judge is doing is stating that one can avoid legal culpability but still behave unethically. This concept is also discussed in the Talmud, where the concept of being a נבל ברשות התורה is discussed. Over and above specific regulations and commandments, Judaism has a catch all obligation to ‘be holy’, because the Lord is holy.
For a good paper on legal ethics, see “Moral Philosophy’s Standard Misconception of Legal Ethics” 1984 Wis. L. Rev. 1529 (1984) Schneyer, Ted
In this country, the Israel Law Bar seems to be mostly concerned with appropriate forms of advertising and dress. These issues are to separate the lawyer from the layman and to create a hallowed aura around lawyers. There is little that addresses professional ethics.
The (voluntary) code of conduct of Israel patent attorneys that was drawn up by Dr Kfir Luzzatto has a lot of good in it, regarding not criticizing colleagues, but only specific work products, and not taking over a case without checking that there are no open debts to previous representatives. These issues are important, but also only part of it. There is a need to treat clients and workers properly and to explain to clients what future costs are likely to be incurred.
I’d like to arrange a conference on business ethics for patent professionals. Anyone interested in attending such an event, please let me know.
Another of Jeremy’s slides had the following text:
- Whatever you do with your IP – and this includes doing nothing – is a business decision and should be based on the same criteria as any other business choice
- The vast majority of IP practitioners have insufficient and/or inadequate training and experience to equip them to give or evaluate the sort of business advice their clients need
- Those IP practitioners who fall into that category are often in a state of denial
I wonder how many of us agree with these sentiments? I wonder how many of us refrain from giving business advice as: (a) we are not competent to, and (b) we have an invested interest in clients filing applications and paying maintenance fees as we charge for these services.