Disciplinary Board Disciplinary Actions - Virginia State Bar

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tions of the Respondent’s written response are established,
the findings in the other jurisdiction shall be
conclusive of all matters for the purposes of the proceeding
before the Board.
If at the time fixed for hearing the Respondent
has not filed a written response or shall not
appear or if the Board, after hearing, shall determine
that the Respondent has failed to establish the allegations
of his written response, the Board shall
impose the same discipline that was imposed in
the other jurisdiction.
Paragraph 13.G (emphasis added). Accordingly, the Board
ruled that Respondent would be permitted to participate at the
hearing, but would not be permitted to present evidence in an
effort to establish one of the three grounds set forth in the Rule
discussed above.
Then, the Bar introduced as its exhibits the final order of
the PTO, the settlement agreement entered into by the PTO
and the Respondent and the PTO investigative report.
Then, the Bar rested its case and moved the Board to
enter an order imposing the same four year suspension upon
Respondent as was imposed by the PTO.
Respondent’s counsel then addressed the Board and
argued in opposition to the imposition of the four year suspension.
During his argument, counsel for Respondent conceded
that his client was afforded due process in the disciplinary proceeding
before the PTO (thereby conceding the first ground set
forth in the Rule justifying the non-imposition of the same discipline).
He further conceded that the conduct reported in the
PTO investigative report upon which the PTO final order was
based would be grounds for disciplinary action if shown independently
in a proceeding before the Board (thereby conceding
the third ground for non-imposition of the same discipline).
Even though the Board had previously ruled that Respondent’s
failure to file a written response precluded Respondent from
relying upon any of the three grounds set forth in the Rule to
avoid the imposition of the same discipline, Respondent’s
counsel argued that to impose the same discipline in this matter
would result in grave injustice as contemplated by Part Six,
Section IV, Paragraph 13.G(2). In addition, Respondent’s counsel
argued that the PTO is not “another jurisdiction” as contemplated
by the Rule and, therefore, the Board had no authority
under Paragraph 13.G to impose the same discipline as was
imposed by the PTO.
The Board then retired to consider the arguments of counsel
and the evidence introduced at the hearing. Thereupon, the
Board held that the Respondent had failed to show cause as to
why the same discipline as was imposed by the PTO should
not be imposed by the Virginia State Bar Disciplinary Board, if
the PTO was “another jurisdiction” as that term is used in
Paragraph 13.G. The Board requested that both parties brief the
limited issue of whether the PTO is “another jurisdiction”
within the meaning of the Rule, in as much as that term is not
a defined term in Paragraph 13.G.
The parties submitted their briefs on this issue and the
panel was reconvened by conference call on April 9, 2002.
After careful consideration of the record in this case and the
arguments and authorities submitted by the parties, the Board
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disciplinary actions
finds that the PTO constitutes “another jurisdiction” as contemplated
by the Rule. As stated above, the term is not defined in
the Rules of the Supreme Court of Virginia. This is an issue of
first impression before the Board. In fact, no decision by any
court has specifically addressed this issue. However, in 2000
the Connecticut Court of Appeals affirmed the decision of a
lower court in which reciprocal discipline was imposed upon a
lawyer who had been suspended from practice before the
PTO. Statewide Grievance Committee v. Klein, 1998 WL 563533
(Conn. Super. Ct.), aff’d, 56 Conn. App. 903, 742 A.2d 443
(Conn. App. Ct. 1999), petition for appeal denied, 252 Conn.
940, 747 A.2d 6 (Conn. 2000). While the issue of whether the
PTO was “another jurisdiction” was not specifically addressed,
the Court held that it would impose the reciprocal discipline
imposed by the PTO under a rule which required the imposition
of the same discipline as that imposed in “another jurisdiction”
absent the same type of exceptional circumstances set
forth in the Virginia rule.
In addition, it is significant to note that the PTO adopted
the Code of Professional Responsibility as the Canons and
Disciplinary Rules governing its members (the same rules
Virginia had in effect during the time of Mullen’s misconduct
herein). See 37 C.F.R. § 10.20 -10.112. Also, the PTO has the
authority to reprimand, suspend or revoke a member (37 C.F.R.
ß 10.130), and has established procedures for disciplinary
investigations, the filing and service of the notice of charges
and answers, and a myraid of procedural rules relating to
motions, hearings, appeals and even petitions for reinstatement.
See 37 C.F.R. § 10.130-10.160. In short, the PTO’s disciplinary
system and procedures are very similar to that of the mandatory
state bars, including that of Virginia.
The Board further notes that the settlement agreement in
the PTO disciplinary proceeding herein was agreed to and
signed by Respondent and includes the term that: “[t]he OED
Director give notice to the Virginia State Bar that Respondent
has been suspended by the USPTO Director pursuant to 35
U.S.C. § 32. See 37 C.F.R. § 10.159(a)” It would appear that by
agreeing to the inclusion of this paragraph in the settlement
agreement both the PTO and Respondent acknowledged at
least the possibility that the Virginia State Bar would take
action upon receipt of this notice under Paragraph 13.G. In
consideration whereof, the Board finds that the PTO is
“another jurisdiction” within the meaning of Paragraph 13.G
and that reciprocal discipline under Paragraph 13.G should be
imposed upon the Respondent under the circumstances of this
case.
In consideration whereof, it is ORDERED that Respondent
be, and he hereby is, suspended from the practice of law in
the Commonwealth of Virginia for the period of four (4) years
from the date of entry of this Order; and it is further
* * *
ORDERED that the Clerk of the Disciplinary System shall
assess costs against the Respondent pursuant to Paragraph
13.K(10); and it is further
* * *
So ordered this 6th day of May, 2002.
VIRGINIA STATE BAR DISCIPLINARY BOARD
By: William M. Moffet, Chair.