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Lawyer Faces Reciprocal Discipline by PTO

A Missouri lawyer whose law license was suspended indefinitely by the Su­preme Court of Missouri cannot over­turn an order of the U.S. Patent and Trademark Office imposing identical reciprocal discipline pursuant to 35 U.S.C. § 32; the Alexandria U.S. District Court upholds the decision, despite the fact that the Virginia State Bar did not impose reciprocal discipline.

By order dated Oct. 28, 2014, the Mis­souri Supreme Court found petitioner guilty of misconduct as a result of vi­olating Missouri Rules of Professional Conduct 4-4.2 and 4.8.4(d), and entered an order of indefinite suspension from the practice of law, precluding petition­er from seeking reinstatement for a full year. The Supreme Court upheld dis­ciplinary committee findings that the lawyer violated Rule 4-4.2 by commu­nicating with a represented party, and violated Rule 4-8.4(d) in that he sought to intimidate a party by threatening to join his employer as a defendant when he refiled litigation.

Petitioner contends the PTO erred in imposing reciprocal discipline. The PTO contends it did not so err because pe­titioner failed to establish by clear and convincing evidence that any of the fac­tors in Selling v. Radford, 243 U.S. 46 (1917), pointed to a contrary result.

Record support

The administrative record reflects that reciprocal discipline was warrant­ed here. The proceedings before the Supreme Court of Missouri provided petitioner significantly greater process than the bare minimum due process re­quirements. The fact that the Missouri Discipline Committee panel quashed petitioner’s subpoena for opposing counsel’s file in the earlier Missouri lit­igation does not amount to a due pro­cess violation because petitioner was given an opportunity to argue that he was entitled to particular files – which he failed to do – and was allowed to question both opposing counsel and the client in the Missouri litigation at the hearing. Further, petitioner’s communi­cation with the opposing, represented party was confrontational and intimi­dating, as petitioner threatened to file a second civil action and to notify the par­ty’s employer of the dispute. Contrary to petitioner’s contention, the fact that the discipline imposed here was differ­ent from the discipline imposed by the PTO in other reciprocal discipline cases does not create a grave injustice or an equal protection violation, because the numerous PTO Director suspension de­cisions cited by petitioner involved facts and state disciplinary proceedings dif­ferent from those in issue here.

The Virginia State Bar, when pre­sented with a reciprocal discipline ac­tion against petitioner, dismissed the action because the predicate order of suspension from Missouri was rendered under Missouri’s preponderance of the evidence standard, a lesser standard of proof than Virginia’s standard of proof. The VSB order of dismissal also made clear that the matter could later be ad­dressed in a “misconduct action” apply­ing the correct standard of proof. The VSB decision is irrelevant here because the PTO correctly applied its own stan­dards – not those of the Virginia State Bar – to determine whether reciprocal discipline was appropriate. The PTO did not err in concluding that under the PTO’s standards, reciprocal discipline was appropriate here.

Judgment affirmed.

Chaganti v. Lee (Ellis) No. 1:15cv1138, May 11, 2016; USDC at Alexandria, Va. VLW 016-3-235, 18 pp.

VLW 016-3-235

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