VIRGINIA: BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD





IN THE MATTER OF:

 

Martin G. Mullen VSB Docket No. 02-000-1877





ORDER OF SUSPENSION



THIS MATTER came on February 22, 2002, before a duly convened panel of the Virginia State Bar Disciplinary Board (the "Board"), comprised of William M. Moffet, Chair, Chester J. Cahoon, Jr. (Lay Member), Bruce T. Clark, Peter A. Dingman and Joseph R. Lassiter, Jr., pursuant to a Rule to Show Cause and Order of Suspension and Hearing entered January 25, 2002 (the "Order of Suspension"). Martin G. Mullen ("Respondent") appeared in person and was represented by counsel, Timothy J. Battle. The Virginia State Bar (the "Bar") appeared by Assistant Bar Counsel Richard E. Slaney. The matter was reported by Leslie Etheredge, Registered Professional Reporter, Inge Snead & Associates, Ltd., 4444 Arrowhead Road, Richmond, Virginia, 23235 (telephone number 804-272-7054).

The Order of Suspension was issued upon the Board receiving notification that Respondent had been suspended from the practice of law before the United States Patent and Trademark Office (the "PTO") for a period of four (4) years commencing November 3, 2001, by an order entered on October 4, 2001 by the Acting Director of the PTO. The Rules of the Virginia Supreme Court, Part Six, Section IV, Paragraph 13.G (the "Rule" or "Paragraph 13.G"), require the Board, upon notice that an attorney admitted to practice in the Commonwealth of Virginia has been disbarred or suspended from practice in "another jurisdiction," to impose the same sanction that was imposed in that "other jurisdiction" unless the attorney can show cause why such sanction should not be imposed. The Rule sets forth the only three grounds which are sufficient to show cause as to why the same sanction should not be imposed. The Rule also states that the Respondent has a certain amount of time after the mailing of the Suspension Order to him to state in writing which of those three grounds he will be attempting to prove at the hearing. Failure to file such a written response within that time specified or failure of the Respondent to establish the ground set forth in the written response will result in the same discipline being imposed.

The hearing commenced with the Chair polling the panel as to whether any member had any personal or financial interest in the matter to be heard. Each member, including the Chair, responded in the negative.

Thereupon, the Bar moved to preclude Respondent from presenting any evidence at the hearing on the ground that the Respondent had not filed an answer or other written response to the Suspension Order specifying which of the three grounds set out in the Rule he was going to attempt to prove to avoid imposition of the same sanction as was imposed by the PTO. In response, Respondent moved for leave to file a written response making the required specification at the hearing. After due deliberation and consideration of argument presented by both sides on this point, the Board denied Respondent's motion to file an answer late because the Rule states that, "within fourteen days of the date of mailing [of the Suspension Order], the Respondent shall file a written response, which shall be confined to the allegations that . . . [then the three grounds are set out]." The Rule goes on to state:

The Respondent shall have the burden of producing the record upon which he relies to support allegations (1), (2), or (3) above, and he shall be limited at the hearing to reliance upon the allegations of his written response. Except to the extent the allegations 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 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.  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 Respondent shall forthwith give notice, by certified mail, return receipt requested, of the suspension of his license to practice law in the Commonwealth of Virginia to any and all clients for whom he is currently handling matters and to all opposing counsel and presiding judges in any pending litigation in which he may be an attorney of record. Respondent shall also make appropriate arrangements for the disposition of matters now in his care in conformity with the wishes of his clients. Such notice shall be given within fourteen (14) days of the date of this Order and Respondent shall make the necessary arrangements within forty-five (45) days of the date of this Order. Within sixty (60) days of the date of this Order, Respondent shall furnish proof to the Bar that such notices have been timely given and such arrangements properly made. All issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Board, which may impose a sanction of revocation or further suspension for failure to comply with the requirements 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

ORDERED that a copy of this Order shall be mailed to Respondent by certified mail, return receipt requested, at his address of record with the Bar, 8820 Firecrest Place, Alexandria, Virginia, 22308, to Respondent's counsel, Timothy J. Battle, P.O.Box 19631, Alexandria, Virginia, 22320, and to Richard E. Slaney, Esquire, Assistant Bar Counsel, Virginia State Bar, Eighth and Main Building, 707 E. Main Street, Suite 1500, Richmond, Virginia, 23219.

So ordered this ______ day of ___________________, 2002.

VIRGINIA STATE BAR DISCIPLINARY BOARD



By:______________________________________

William M. Moffet, Chair.



DISSENTING OPINION

Joseph R. Lassiter, Jr., in dissent:



The Virginia State Bar ("the Bar") seeks to suspend the license of Martin Mullen to practice law on the grounds that the attorney has had his license to practice before the United States Patent and Trademark Office ("PTO") suspended. Mullen entered into a settlement agreement with the Director of Enrollment and Discipline of the PTO whereby he agreed to a four year suspension. A final order was entered by the PTO on October 4, 2001.

The Bar argues that the PTO is "another jurisdiction" under Part 6 Section IV, Paragraph 13(G), which provides for reciprocal discipline of ". . . an Attorney admitted to practice in this State [who] has been disbarred or suspended from practice in another jurisdiction. . . ." The Respondent is allowed fourteen days from notification of a Show Cause hearing to file a written response alleging (1) denial of notice or opportunity to be heard in the prior proceeding, (2) grave injustice, or (3) that the alleged conduct would not be grounds for discipline in Virginia. The burden is on the Respondent to establish one of these grounds of defense. The Disciplinary Board is not permitted to depart from the discipline meted out by the other jurisdiction. Proof of one of the three grounds of defense would appear to result in no suspension at all. "Jurisdiction" is not defined anywhere in the Rules. If the Bar is not allowed to proceed under Paragraph 13(G), the Bar still has the option to institute such disciplinary proceedings against the Respondent as may be appropriate.

The Respondent contends that another "jurisdiction" as defined in Paragraph 13(G) should not be read to include an "administrative" agency such as the PTO. Respondent argues that "jurisdiction" refers to judicial action by judges of a tribunal, and does not include quasi-judicial action. As noted in the majority opinion, Respondent essentially admitted that defenses #1 and #3 in the preceding paragraph do not apply. Counsel for Respondent attempted to argue that it would constitute grave injustice to impose the same four year suspension of Respondent's Virginia State Bar license that was imposed by the PTO when it suspended his license to practice before the PTO, even though Respondent had failed to file a grounds of defense asserting "grave injustice" within the mandatory fourteen day period. It is not clear that the "grave injustice" defense would apply, even if the PTO were to be found to be "another jurisdiction" under Paragraph 13(G).

I remain unconvinced as to what constitutes another "jurisdiction" as used in Paragraph 13(G). That provision references "an Attorney admitted to practice in this State" who has been disbarred or suspended from practice in another jurisdiction, and my initial understanding was that the reference was to an attorney disbarred by another state bar. If "jurisdiction" is read to include more than another state bar, what might that include? Federal courts? The U.S. Bankruptcy Court for the Western District of Virginia, or the District of South Carolina, or any other district? The bar of the Benefits Review Board? CRESPA certification? The Patent and Trademark Office? While it is not clear to me that "jurisdiction" as used in Paragraph 13(G) is limited to state bars, I am uncomfortable with broadening the definition to include any tribunal which might elect to adopt rules of admission for lawyers appearing before that tribunal.

Furthermore, characteristics of the bar of one specialized tribunal, such as the PTO, might cause differences in adjudication. For example, behavior that might result in denial of privileges to appear before the bankruptcy court might be less significant in evaluating whether an attorney should be completely suspended or disbarred from the practice of law in Virginia. Likewise, a personal injury attorney responsible for maintenance of a huge docket of personal injury cases might be suspended from practice for permitting the statute of limitations to expire on 14 personal injury cases, but it is not clear that a four year suspension would ensue following a first offense.

Mullen voluntarily agreed to the suspension of his license to practice before the PTO for a period of four years based upon discovery that 14 patent applications had become abandoned due to failure to properly diary them for review. (Filing of correspondence and other documents was not properly attended to in Mullen's branch office of a firm that had offices in Iowa and Nebraska.) Attorneys, as well as non-attorneys, are allowed to perform numerous functions in patent law firms without being licensed to practice before the PTO. Conversely, non-attorneys can be licensed to appear before the PTO. The terms of Mullens' suspension require him to maintain a patent prosecution docket for a registered patent attorney for a period of at least one year before he can qualify to get his PTO license back. It would appear that Mullen's suspension by the PTO did not necessarily contemplate suspension of his license to practice law in any form for four years.

The tendency in law, as has occurred in other professions, is towards specialization. Under the circumstances, it would appear that it would be best to define "jurisdiction" narrowly, and let the Supreme Court clarify or revise the rules as it sees fit if it wishes to establish a broad definition of the phrase "another jurisdiction". I would limit the effect of "jurisdiction" in Paragraph 13(G) to state bars who license attorneys for the practice of law. This would not deny the Bar the right to seek suspension for inappropriate acts following suspension by an administrative bar, but would permit the Disciplinary Board to fashion its own sanction following presentation by another licensing entity.