In the Matter of Disciplinary Proceedings Against Carl J. Schwedler, Attorney at Law:Office of Lawyer Regulation, Complainant,
Carl J. Schwedler, Respondent.
disciplinary proceeding. Attorney's license suspended.
On September 12, 2016, the Office of Lawyer Regulation (OLR)
filed a complaint and motion pursuant to Supreme Court Rule
(SCR) 22.22, requesting this court suspend Attorney Carl J.
Schwedler's license to practice law in Wisconsin for a
period of six months, as discipline reciprocal to that
imposed by the United States Patent and Trademark Office
(USPTO). The OLR asked that we order restitution as described
herein and impose costs on Attorney Schwedler. Upon review,
we agree that it is appropriate to suspend Attorney
Schwedler's law license for a period of six months.
Consistent with the terms of the decision rendered by the
USPTO, if Attorney Schwedler seeks reinstatement of his
license to practice law in Wisconsin, reinstatement may
require Attorney Schwedler to demonstrate that he has made
restitution to the client. We decline to impose costs on
Attorney Schwedler was admitted to practice law in Wisconsin
in 1990. He was registered as a patent attorney by the USPTO
on April 19, 1993. He was admitted to practice law in
California in 2006 and resides in California.
On October 31, 2009, Attorney Schwedler's Wisconsin law
license was suspended for failure to pay State Bar of
Wisconsin dues. On June 8, 2011, his Wisconsin law license
was further suspended for failure to comply with continuing
legal education requirements. Attorney Schwedler's
Wisconsin law license remains administratively suspended. In
2015, the State Bar of California transferred Attorney
Schwedler to "inactive enrollment" for his failure
to timely file a response to then pending disciplinary
charges. He was subsequently disbarred. On March 18, 2015,
Attorney Schwedler was administratively suspended from
practice before the USPTO. He was later excluded from
practice before the USPTO.
On September 12, 2016, the OLR filed a complaint against
Attorney Schwedler alleging that, by virtue of the public
sanction imposed by the USPTO on March 21, 2016, Attorney
Schwedler is subject to reciprocal discipline in Wisconsin
pursuant to SCR 22.22. On November 30, 2016,  this court
directed Attorney Schwedler to inform the court in writing
within 20 days of any claim by him, predicated upon the
grounds set forth in SCR 22.22(3), that the imposition of
discipline reciprocal to that imposed by the USPTO would be
unwarranted, and of the factual basis for any such claim.
Attorney Schwedler did not file a response. On March 23, 2017
this court issued an order directing the OLR to respond to a
series of questions regarding this matter. The OLR filed a
response on April 6, 2017.
We first observe that the USPTO, a federal agency with its
own licensing and disciplinary proceedings, is appropriately
considered "another jurisdiction" for purposes of
our reciprocal discipline rule, SCR 22.22(1) . See In Re
Discipline of Peirce, 122 Nev. 77, 78, 128 P.3d 443, 443
(2006), reinstatement granted sub nom. In re
Reinstatement of Peirce, No. 62091, 2014 WL 4804214
(Nev. Sept. 24, 2014); People v. Hartman, 744 P.2d
482 (Colo. 1987); People v. Bode, 119 P.3d 1098,
1100 (Colo. O.P.D.J. 2005); In Disciplinary Counsel
v. Lapine, 2010-Ohio-6151, ¶¶12-14, 128 Ohio
St.3d 87, 89-90, 942 N.E.2d 328, 330-31.
Accordingly, we consider the following facts, which are taken
from the OLR's complaint and from the certified documents
attached to the OLR's complaint relating to the
underlying disciplinary proceeding.
On October 6, 2015, the United States Office of Enrollment
and Discipline (OED) for the USPTO filed a disciplinary
complaint against Attorney Schwedler. Attorney Schwedler
failed to respond and the OED eventually sought a default
judgment. On March 21, 2016, the USPTO issued an order
finding Attorney Schwedler in default, such that he was
deemed to have admitted the allegations in the OED's
complaint. The USPTO then sanctioned Attorney Schwedler for
numerous violations of the USPTO Rules of Professional
Conduct. Essentially, Attorney Schwedler undertook to
represent a client, G.Y., in a patent application, accepted a
$1, 500 retainer, and then abandoned the client and the
patent application, failing to take any action on the
client's behalf. The Administrative Law Judge (ALJ)
concluded that Attorney Schwedler violated USPTO Rules of
Professional Conduct, as follows:
1. C.F.R §11.103 proscribes failing to act with
reasonable diligence and promptness in representing a client.
Respondent agreed to take over the representation of a Client
on a [patent] application and told the Client that he would
file a response to the June 10, 2013, Final Office Action
before September 10, 2013. Respondent failed to file that
response allowing the [patent] application to become
abandoned. After the [patent] application became abandoned,
Respondent made no efforts to revive it. These lapses
constitute violations of 37 C.F.R. §11.103.
2. 37 C.F.R. §11.104(a)(3) proscribes failing to keep
the client reasonably informed about the status of a matter.
Respondent agreed to submit the appropriate filings to the
USPTO by September 10, 2013, but failed to do so. This
resulted in the [patent] application becoming abandoned.
Respondent did not inform the Client of this development or
that Respondent had not filed the response. It was only after
the Client was notified by Respondent's former firm of
the status that Respondent resumed communications with the
Client. Such conduct constitutes a violation of 37 C.F.R.
§11.104(a) (3) .
3. 37 C.F.R. §11.104(a)(4) proscribes failing to
promptly comply with reasonable requests for information. As
noted [above], Respondent did not resume communications with
the Client until after the Client's son began to ask
about the status of the [patent] application. The
Client's inquiries into the status of the [patent]
application were reasonable, especially in light of the fact
that the Client was notified that the application had become
abandoned. However Respondent's responses, though prompt,
were not compliant with the Client's requests for
information, because Respondent purposely gave the
Client's son incorrect information by indicating that
'everything is normal here' when in fact the [patent]
application had become abandoned.
4. 37 C.F.R §11.115(d) proscribes failing to promptly
deliver to a client any funds or property that the client is
entitled to receive. After the Client informed Respondent
that responsibility for the prosecution of the [patent]
application had been transferred to another registered
practitioner, the Client requested that the prototype for the
invention be returned to the Client. Respondent, however, did
not return the prototype to Respondent [sic] as requested.
Accordingly, Respondent violated 37 C.F.R. §11.115(d).
5. 37 C.F.R §11.116(d) proscribes failing to surrender
papers and property to which the client is entitled and to
refund any advance payment of fee or expense that has not
been earned or incurred upon termination of the
practitioner-client relationship. The Client agreed to pay
Respondent $1, 500 in advance for patent legal services to be
rendered. Respondent sent a retention letter noting the $1,
500 fee to the Client, who promptly paid the fee. Respondent
also sent the Client a September 18th invoice for $1, 500,
and described in the September 18th invoice the services
rendered for the [patent] application as follows:
'Response to Office Action from USPTO and filing
continued prosecution application.' However Respondent
never earned this fee, because he never performed the
services agreed to, and described by, the September 18th
invoice. After the Client informed Respondent that his
responsibility for the prosecution of the [patent]
application had been transferred to another registered
practitioner, Respondent did not return the $1, 500 fee that
the Client prepaid. Accordingly, Respondent violated 37 C.F.R
6. 37 C.F.R. §11.804(c) proscribes conduct involving
dishonesty, fraud, deceit, or misrepresentation. Respondent
agreed to represent the Client and file a response to the
June 10, 2013, Final Office Action. He did not do so. Yet,
Respondent sent the Client an invoice suggesting that he had
filed the response and was continuing with the prosecution of
the application. Then after the Client's son contacted
Respondent regarding the status of the [patent] application,
Respondent sent an e-mail to the son stating, ' I have
everything in order for filing the response' when in
fact, the [patent] application had become ...