Representative, you shall…What is the proposal for the UPC’s code of conduct saying?

After much debate about the UPC Code of Conduct and the publication of a letter by the Council of Bars and Law societies of Europe (see our post here) highlighting the potential tensions between national codes of conduct and the UPC code of conduct, its proposal has been made public by the Preparatory Committee on the Unified Patent Court’s website.

As explained in its preamble, the code of conduct has been drafted by a working group comprising the EPLAW, EPLIT and epi which “undertook a comparative study of existing professional laws to identify the needs as well as the limitations for regulations within the Code of Conduct”.

The proposed code of conduct has therefore been divided into four articles covering issues related to its field of application, the representatives’ general conduct, witnesses and experts, and change of representation.

Regarding its field of application and in view of the potential conflict between national laws, the UPC rules of procedure and the code of conduct itself, the proposal makes clear in its first article that its scope is limited to the scope required by the rules of procedure. The code of conduct cannot therefore be in contradiction with national laws. On the other hand, in case a conflict arises between the code of conduct and the rules of procedure, the latter will prevail.

The second article lists the principles that must guide the Representatives’s general conduct, who shall:

  • act respectfully, courteously and competently. Representatives’ competency is further defined in the notes as the necessity for representatives to “inform themselves sufficiently about the new system and applicable law to prepare their cases correspondingly”.
  • have due regard for the fair conduct of proceedings, exercise his or her right in good faith, not abuse the Court process, be reasonably accommodating and flexible.
  • not contact a judge about a specific case without the participation or prior consent of the other party’s Representative.
  • serve the interests of their clients in an unbiased manner without regard to his or her personal feelings or interests.
  • ensure the appropriate demeanour of anyone accompanying him or her.
  • not misrepresent cases or facts before the Court (knowingly or where the inaccuracy could easily have been discovered).
  • in case he or she becomes aware that they have misled the court, inform the Court with the consent of their client. If the Representatives’ client refuses to give consent, representatives shall cease to represent that client.
  • not disclose any document that is subject to privilege without the consent of his or her client.

The third article looks specifically at the Representatives’ legal obligations in respect of witnesses and party  experts. The code of conduct states that representatives shall ensure that:

  • witnesses are fully informed about their obligation to tell the truth and of their liability under the applicable national law in the event of any breach of this obligation.
  • experts are fully informed of their obligation to assist the court impartially, being independent and objective and not advocating for any party.
  • the substance of evidence of a witness or expert solely reflect the witness’ or expert’s respective recollection or opinion.
  • reasonable compensation for the work of witnesses and experts is arranged if necessary.

Finally, in case of a change of representation, the former representative shall be responsible of the notification of the change to the Registry without undue delay.

This code of conduct raises however a few questions. For instance,  which national law will be applicable to witnesses? Will it be the witness’ own national law or will it be the national law of the country where it is trialled? One can also wonder whether, independently of which law is applicable, this will create an uneven playing field  in the event of a breach by a witness of her obligations as both options suggest that witnesses would not all be subject to the same national law. Similarly the extent to which a representative will have to “inform” a witness of its liability is uncertain. In fact, does the code of conduct mean that a representative has to advise witnesses on their liability under applicable national laws or does it mean that representatives simply have to alert witnesses? More questions could of course be raised on this code of conduct, for example on the very broad terms used to describe the general conduct of representatives, which may appear particularly vague in comparison with some of the national codes of conduct.

However, as indicated by the Preparatory Committee, further work is expected this month (June 2016) before the draft is tabled again at the meeting of the Committee planned for 30th June…