Tuesday, January 09, 2018

PTAB cites 37 CFR 11.802(a) in St. Regis Mohawk. Contemplate history of ABA Model Rule 8.2

The PatentDocs blog includes the PTAB decision in Mylan v. St. Regis Mohawk Tribe [ Paper 124
Entered: January 4, 2018. ORDER Denying Request for Oral Hearing and Denying Renewed Request for Authorization to File Motion for Additional Discovery
37 C.F.R §§ 42.5, 42.70(a), 42.51

See Patent Docs post The PTAB Strikes Back

Of discovery into PTAB related to alleged bias:

But nowhere has the Tribe offered anything other than gross speculation as to any of its assertions of alleged
impartiality. See Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC, Case
IPR2012-00001, Paper No. 26, slip op. at 6 (PTAB Mar. 5, 2013)
(precedential) (“The mere possibility of finding something useful, and mere
allegation that something useful will be found, are insufficient to
demonstrate that the requested discovery is necessary in the interest of
justice.”). Seeking, for example, “[t]he methodology used to determine the
annual bonuses (or other merits based compensation) for each member of
our merits panel” and “[t]he annual reviews of all members of our merits
panel” (id. at 6) serves no purpose in these proceedings and amounts to a
fishing expedition that is a waste of our time and resources.

Rule 11.802(a) appears in footnote 4:

4 We note the USPTO Rules of Professional Conduct state that “[a]
practitioner shall not make a statement that a practitioner knows to be false
or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge.” 37 C.F.R. § 11.802(a). Failure to
abide by those rules amounts to professional misconduct and may justify
disciplinary proceedings. 37 C.F.R. §§ 11.804, 11.901.

37 CFR 11.802(a) states:

(a) A practitioner shall not make a statement that the practitioner knows to be false
or with reckless disregard as to its truth or falsity concerning the qualifications
or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate
for election or appointment to judicial or legal office.

This text relates to ABA Model Rule 8.2. The case IN RE: Christine M. MIRE. contains a relevant footnote:

The applicable rule in Louisiana is Rule 8.2 of Louisiana's Rules of Professional Conduct, which tracks Model Rule of Professional Conduct 8.2. Model Rule 8.2 was promulgated by the American Bar Association (ABA), after the Supreme Court, in Garrison v. Louisiana, 379 U.S. 64 (1964), held that statements critical of judges made by a district attorney could only be “the subject of either civil or criminal sanctions” if the statements were “false” and “made with the high degree of awareness of their probable falsity demanded by New York Times [v. Sullivan, 376 U.S. 254, 270 (1964) ].” See Margarett Tarkington, Comment, The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, Geo. L.J., 97, 1567, 1568–69 nn. 1–5 and accompanying text (2009) (which contains the history of Model Rule 8 .2). The commentator further notes there is a significant disconnect between the ABA's originally intended standard and the application of Model Rule 8.2 by courts across the country. See Id., 1569 nn. 5–6 and accompanying text.

In Maryland:

MLRPC 8.2(a). To establish a violation of this rule, three things must be
proven by clear and convincing evidence: (1) that the lawyer made a false statement;
(2) that the statement concerned the qualifications or integrity of a judge or a
candidate for judicial office; and (3) that the lawyer made the statement with
knowledge that it was false or with reckless disregard as to its truth or falsity.6 In
this case, the parties have focused on the third element – whether the statement in
Mr. Stanalonis’ campaign flyer was made with knowledge that it was false or with
reckless disregard as to its truth or falsity.7

Footnote 6:

6 The rule is based on a model rule proposed by the American Bar Association.
See American Bar Association, Annotated Model Rules of Professional Conduct 651
(8th ed. 2015). Courts in other states that have adopted the rule have also recognized
that it requires proof of these three elements. See In re Charges of Unprofessional
Conduct Involving File No. 17139, 720 N.W. 2d 807, 813 (Minn. 2006).

link: http://www.mdcourts.gov/opinions/coa/2015/74a13ag.pdf

**Of a University of Chicago matter, see Al Alschuler on Judge Easterbrook

**See the article by Richard Undeerwood What Gets Judges in Trouble

**In the Ninth Circuit Court of Appeals:

A modified version of the New York Times standard applies in the context of attorney discipline. In the recent case of United States District Court v. Sandlin, 12 F.3d 861 (9th Cir.1993), the Ninth Circuit considered a disciplinary sanction under Washington Rule of Professional Conduct 8.2, which is identical to ABA Model Rule 8.2. The Court of Appeals stated:

The Supreme Courts of Missouri and Minnesota have determined that, in light of the compelling interests served by RPC 8.2(a), the standard to be applied is not the subjective one of New York Times, but is objective. [Matter of] Westfall, 808 S.W.2d [829] at 837 [1991]; In re Disciplinary Action Against Graham, 453 N.W.2d 313, 322 (Minn.), cert. denied, 498 U.S. 820 [111 S. Ct. 67, 112 L. Ed. 2d 41] (1990). We agree. While the language of WSRPC 8.2(a) is consistent with the constitutional limitations placed on defamation actions by New York Times, "because of the interest in protecting the public, the administration of justice, and the profession, a purely subjective standard is inappropriate." Westfall, id. at 837. Thus, we determine what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.
Sandlin, 12 F.3d at 867.

Under this objective standard, a statement is reckless if made without any reasonable basis in fact. Id. Ignorance is not bliss; an attorney has an obligation to conduct a factual inquiry prior to speaking. See id. (without first deposing court reporter, attorney told FBI that judge ordered reporter to alter transcript); Westfall, 808 S.W.2d at 838 (without investigation, attorney made publicly televised statement accusing judge of purposefully dishonest conduct); In the Matter of Elizabeth Holtzman, 78 N.Y.2d 184, 573 N.Y.S.2d 39, 577 N.E.2d 30 (1991) (prior to obtaining trial minutes and without making any effort to interview witnesses, district attorney accused judge of requiring witness to demonstrate the position she was in when sexually assaulted), cert. denied, ___ U.S. ___, 112 S. Ct. 648, 116 L. Ed. 2d 665 (1991).

link: https://law.justia.com/cases/federal/district-courts/FSupp/856/1384/1681047/
[ BUT also Yagman, 55 F.3d 1430 (9th Cir. 1995)]


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