APJs Need to Clarify the Pro Hac Vice Standard

Scott Daniels | November 26, 2012

The APJs are taking very seriously motions by an attorney for pro hac vice permission to practice in an IPR or a CBM, as well the APJs should.  Such an attorney is required to submit a declaration answering specific questions regarding his or her legal experience and character.  Among those questions is whether the attorney has ever been denied permission to practice before any court or before any administrative agency.

Does such “denial” include instances where an attorney has failed to pass a bar exam or failed to pass the PTO’s patent agents’ exam?  One would think not.  But a very capable acquaintance of mine, who was required to file a declaration for pro hac vice permission and who had failed the patent agents’ exam, called the Patent Office to be sure.  The answer was essentially “I-don’t-know-but-you-should-mention-that-failure-in-your-declaration.”  And so my acquaintance complied with the advice and included the failure in the declaration.

Many of our colleagues, including some of the most capable, have at one time or another failed to pass an admissions test, and such failure in no way calls into question their ability or character.  The APJs should therefore clarify their declaration requirements so that such failures need not become part of the public record in IPR and CBM proceedings.

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