THE FOLLOWING INFORMAL ADMONITION WAS ISSUED BY BAR COUNSEL ON June 30, 2006

Transcription

1 THE FOLLOWING INFORMAL ADMONITION WAS ISSUED BY BAR COUNSEL ON June 30, 2006 BY FIRST-CLASS AND CERTIFIED MAIL NO Re: In re Bruce A. Tassan, Esquire (D.C. Bar No ) Dear Mr. Tassan: This office has completed its investigation of the above-referenced matter. We find that your conduct reflected a disregard of certain ethical standards under the District of Columbia Rules of Professional Conduct (the Rules ). We are, therefore, issuing you this Informal Admonition pursuant to D.C. Bar Rule XI, 3, 6, and 8. This matter was docketed for investigation based upon notice from the United States Patent and Trademark Office ( USPTO ), advising that you had been issued a Notice of Reprimand based upon your conduct in connection with your representation of a client before the Trademark Trial and Appeal Board ( TTAB ). See In re Bruce A. Tassan, Proceeding No. D03-10, USPTO (Sept. 8, 2003). 1/ Based upon our investigation of this matter, we find that your conduct violated Rules 3.5(b) and 8.4(d). You represented a client before the TTAB in connection with an application to register a trademark. On or about March 9, 2000, the TTAB s interlocutory attorney denied your motion to extend the testimony period. 2/ On or about March 11, 2000, you left two telephone voic messages with the TTAB s interlocutory attorney, regarding the merits of the opponent s position on scheduling issues and making inappropriate personal attacks on the TTAB s attorney. On March 14, 2000, the TTAB issued an Order, advising you and the opposing 1/ This matter has been handled as an original investigation, rather than as a reciprocal proceeding, because the USPTO is not a disciplining court as defined by D.C. Bar Rule XI, 11(a). 2/ The TTAB s interlocutory attorney serves as a quasi-judicial officer in connection with proceedings before the TTAB. The TTAB s Manual of Procedure ( TBMP ) sets forth the circumstances wherein a matter can be decided by the TTAB s interlocutory attorney. E.g., TBMP ( Interlocutory motions that are not actually or potentially dispositive of a proceeding may be acted upon by a single Board administrative trademark judge, or by a single interlocutory attorney to whom such authority has been delegated ); see also 37 C.F.R (c).

2 Page 2 attorney that no further ex parte communications would be permitted in connection with the matter. On or about March 20, 2000, the TTAB s attorney sent you a facsimile of the Order, stating that your repeated phone calls suggest the attached order may not yet have been received. On or about January 16, 2002, the TTAB issued a Final Order, sustaining the opposition to the registration of your client s trademark. On January 17, 2002, you placed telephone calls to three TTAB Administrative Trademark Judges, leaving intemperate voic messages for each of them, which criticized their decision, addressed the merits of the case, and requested their response. You did not provide opposing counsel with notice of these communications. Approximately one week later, you left a voic message with one of the TTAB Administrative Judges, apologizing for your previous phone calls, but again addressing the merits of the underlying case. As with your previous telephone calls, you did not provide opposing counsel with notice of your communication with the TTAB judge. On February 6, 2002, you sent a floral arrangement to each of the three TTAB Administrative Judges, together with a letter stating, inter alia, that your phone calls were unprofessional and explaining that your conduct may have been influenced by prescription cough medicine. All of your communications with the TTAB Administrative Judges were made prior to the end of the period for the filing a motion for reconsideration or modification of their decision in the matter in which you were appearing before them. Based upon our investigation of the matter, we find that your conduct violated Rules 3.5(b) and 8.4(d). USPTO Code of Professional Responsibility 10.93(b) provides pertinently: In an adversary proceeding, including any inter partes proceeding before the Office, a practitioner shall not communicate, or cause another to communicate, as to the merits of the cause with a judge, official, or Office employee before whom the proceeding is pending, except: (1) In the course of official proceedings in the cause. (2) In writing if the practitioner promptly delivers a copy of the writing to opposing counsel or to the adverse party if the adverse party is not represented by a practitioner.

3 Page 3 (3) Orally upon adequate notice to opposing counsel or to the adverse party if the adverse party is not represented by a practitioner. (4) As otherwise authorized by law. USPTO Disciplinary Rules, 37 C.F.R (b) (2006). Notwithstanding this USPTO disciplinary rule, you contacted the TTAB s interlocutory attorney regarding the merits of your client s matter then pending before the TTAB. Thereafter, the TTAB s interlocutory attorney issued an order, specifically prohibiting all ex parte communications in the proceeding. Notwithstanding the TTAB s Order, prior to the end of the period when the TTAB could have reconsidered its decision, you contacted the three TTAB Administrative Judges who decided your matter and left ill-tempered messages for them regarding the merits of the decision rendered, ex parte, in your client s matter. 1. Rule 3.5(b) provides pertinently that [a] lawyer shall not communicate ex parte with [a judge, juror, prospective juror, or other official] except as permitted by law.... An ex parte communication is defined as [a] generally prohibited communication between counsel and the court when opposing counsel is not present. See Black s Law Dictionary 597 (7 th ed. 1999). Because you communicated, ex parte, with TTAB Administrative Judges and the TTAB s interlocutory attorney about the substance of matters before the TTAB outside of the presence of the opposing party, we find that your conduct violates this Rule. 2. Rule 8.4(d) provides that [i]t is professional misconduct for a lawyer to engage in conduct that seriously interferes with the administration of justice. The District of Columbia Court of Appeals has held that an attorney engages in conduct prejudicial to the administration of justice where attorney's conduct (1) is improper; (2) bears directly upon the judicial process with respect to an identifiable case or tribunal; and (3) taints the judicial process in more than a de minimis way and least potentially impacts upon the process to a serious and adverse degree. In re Hopkins, 677 A.2d 55, (D.C. 1996). 3/ See also In re Hallmark, 831 A.2d 366, 374 (D.C. 2003); In re Utley, 698 A.2d 446 (D.C. 1997); In re L.R., 640 A.2d 697 (D.C. 1994). We find that your conduct in this matter (1) was improper, inasmuch as it violated Rule 3.5(b), 37 C.F.R (b), and an Order from the TTAB; (2) bore directly upon the judicial process in the trademark application matter before that panel; and (3) impacted upon the judicial process to a serious and adverse degree, inasmuch as your ex parte communications necessitated the 3/ Comment [2] to Rule 8.4(d) states that Paragraph (d) s prohibition of conduct that seriously interferes with the administration of justice includes conduct proscribed by the previous Code of Professional Responsibility under DR 1-102(A)(5) as prejudicial to the administration of justice. The extensive case law on that standard... is hereby incorporated into this Rule.

4 Page 4 TTAB s order instructing you to cease engaging in such conduct and formed the basis of a separate ethical investigation by the OED. 4/ The investigation resulted in an order scheduling additional hearings and the appointment of a Special Master by USPTO to examine the propriety of your actions in this matter. Based upon the foregoing, we find that your conduct seriously interfered with the administration of justice, as is proscribed by Rule 8.4(d). In determining to issue you this Informal Admonition, rather than institute formal disciplinary proceedings against you, we have considered that you cooperated with our investigation and that your misconduct did not involve dishonesty. We also take into consideration the OED s findings that you have demonstrated remorse for your actions, and that you have voluntarily sought anger management counseling. 5/ This letter constitutes an Informal Admonition pursuant to D.C. Bar Rule XI, 3, 6, and 8, and is public when issued. Please refer to the attachment to this letter of Informal Admonition for a statement of its effect and your right to have it vacated and have a formal hearing before a Hearing Committee. If you would like to have a formal hearing, you must submit a written request for a hearing to the Office of Bar Counsel, with a copy to the Board on Professional Responsibility, within 14 days of the date of this letter, unless Bar Counsel grants an extension of time. If a hearing is requested, this Informal Admonition will be vacated, and Bar Counsel will institute formal charges pursuant to D.C. Bar Rule XI, 8(b). The case will then be assigned to a Hearing Committee, and a hearing will be scheduled by the Executive Attorney for the Board on Professional Responsibility pursuant to D.C. Bar Rule XI, 8(c). Such a hearing could result in a recommendation to dismiss the charges against you or a recommendation for a finding of culpability, in which case the sanction recommended by the Hearing Committee is not limited to an Informal Admonition. 4/ Indeed, the OED determined that your conduct also violated 10.23(b)(5) (engaging in conduct prejudicial to the administration of justice) and 10.23(b)(6) (engaging in conduct that adversely reflects on practitioner s fitness to practice before the Office). 5/ Bar Counsel notes that the OED considered and determined that your conduct violated 10.89(c)(5) (engaging in undignified or discourteous conduct before the Office). Accordingly, notwithstanding your anger management counseling, we enclose a copy of the D.C. Bar s Voluntary Standards for Civility in Professional Conduct.

5 Sincerely, Wallace E. Shipp, Jr. Bar Counsel Enclosure: Attachment to Letter of Informal Admonition WES:cms