Summary
The Kansas Supreme Court reviewed attorney-discipline findings arising from Bradley P. Sylvester’s mishandling of a client’s patent application. The court found violations involving competence, scope of representation, diligence, communication, and dishonesty, and imposed published censure plus reimbursement of $5,800 in attorney fees.
Topics
Practice areas
Questions Presented
- Whether the disciplinary hearing panel's factual findings were supported by the evidence.
- Whether Sylvester violated KRPC 1.1 by failing to provide competent representation in the patent matter.
- Whether Sylvester violated KRPC 1.2(a) by failing to consult with Laas regarding the means of pursuing the representation.
- Whether Sylvester violated KRPC 1.3 by failing to diligently and promptly prosecute or amend the patent application.
- Whether Sylvester violated KRPC 1.4(a) by failing to keep Laas reasonably informed about the application.
- Whether Sylvester violated KRPC 8.4(c) through deceptive or dishonest sworn testimony.
- What discipline was appropriate for the violations and resulting potential harm.
Holdings
- The Supreme Court will adopt disciplinary-panel findings when they are amply sustained by the evidence, but will not adopt findings that are against the clear weight of the evidence; it will not reweigh conflicting evidence or reassess witness credibility.
- An attorney must be competent in any substantive area of practice the attorney accepts, including patent law; practicing primarily in another area does not excuse incompetence.
- Sylvester violated KRPC 1.1, 1.2(a), 1.3, and 1.4(a) by failing to competently and diligently prosecute Laas's patent application, failing to consult about the means of representation, and failing to keep Laas reasonably informed.
- An attorney's knowingly fabricated sworn explanation concerning the handling of a client's matter constitutes dishonesty, deceit, or misrepresentation under KRPC 8.4(c), even when later evidence shows that the underlying act was performed.
- Failure to timely prosecute a patent application, thereby subjecting the client's invention to intervening patent applications and potentially causing loss of patent rights, constitutes potential harm sufficient to support discipline; published censure and reimbursement of $5,800 were appropriate.
Key quotations
“The Kansas Rules of Professional Conduct require Sylvester to be competent at any substantive area of practice in which he accepts a case.” (397)
“We believe Sylvester’s fabricated excuse amounts to misrepresentation or dishonesty, stemming from his failure to maintain adequate records or fully investigate the facts related to Laas’ patent application.” (403)
“It Is Therefore Ordered that Bradley P. Sylvester be and he is hereby disciplined by censure in accordance with Supreme Court Rule 203(a)(3) (2005 Kan. Ct. R. Annot. 247) for his violations of the Kansas Rules of Professional Conduct.” (404)
Factual background
Bradley P. Sylvester represented Mark Laas in preparing and prosecuting a patent application. Sylvester failed to timely address patent-office requests and deficiencies, failed to keep Laas informed that the application had been abandoned, and repeatedly promised to revise or refile the application without doing so. Although later USPTO records showed that an amendment had been filed in October 2000, Sylvester had testified under oath that he had not mailed it and fabricated an explanation for the omission.
Procedural history
The Office of the Disciplinary Administrator filed a formal complaint alleging violations of KRPC 1.1, 1.2(a), 1.3, 1.4(a), and 8.4(g). The hearing panel found violations of KRPC 1.1, 1.2(a), 1.3, 1.4(a), and 8.4(c), recommended a 90-day suspension, and recommended reimbursement of $5,800 in attorney fees. After oral argument, stipulated USPTO records established that Sylvester had filed the patent amendment, but the Supreme Court concluded that his sworn testimony denying the filing was deceptive and imposed published censure plus reimbursement.