A guide to the UPC and the UP - Flipbook - Page 485
Exclusion from Proceedings
23-43 The Court has the powers normally accorded to courts of law as regards representatives who
appear before it under the conditions laid down in r.291 RoP. 71 This rule provides that if a
representative displays improper conduct or violates the Code of Conduct adopted by the
Administrative Committee, the Court has the right to exclude that representative from the
proceedings. In many Member States, both the establishment of a code of conduct and the
sanctions to be applied are not matters for the court before which the litigation takes place,
but rather matters for the relevant professional organisations. Thus, lawyers and patent
attorneys in most Member States can only be sanctioned by their professional organisations
not by the court. The reason is that such representatives should be totally independent from
the courts in which they litigate and should be able to challenge the positions that judges may
take, of course, acting in the interest of their clients, without those judges being able to block
them from doing so. At the same time, a judge can also normally file a complaint against such a
representative with their professional association in case of improper conduct, but the decision
is then in the hands of the professional association.
23-44 The professional associations of future representatives of the Court, EPLAW and EPLIT,
discussed this issue with the legal group of the Preparatory Committee. It was established
that the relevant professional associations in the Member States have sufficient powers to
sanction representatives who misbehave, so in the end this could be left to such professional
associations. Accordingly, the powers of r.291 RoP should only be applied in extreme or urgent
cases. The current text of the rule is not limited to such temporary measures, but it is
understood that it is the intention to apply it in that way. In that case, the exclusion from
proceedings under r.291 RoP will in principle only relate to those proceedings in which the
representative misbehaves and will only be temporary until the relevant professional
association has made a decision in the disciplinary action against the representative.
23-45 If a representative is excluded from proceedings, those proceedings will be suspended
according to r.291(2) RoP in order to enable that party to appoint another representative.
If the professional association handles the disciplinary matter expeditiously and if the
representative is acquitted in those proceedings, they should be allowed to continue to
represent the client in the Court proceedings. This may even be decided before the stay expires.
71
r.290(1) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 475
