Game Theory & Legal Ethics: Understanding OED’s Cards
Updated: Feb 18, 2019
When responding to a Request for Information and Evidence (“RFI”) from the Office of Enrollment and Discipline (“OED”), it is helpful to understand what cards OED holds. Such an understanding could allow a practitioner to negotiate a more advantageous outcome, and relieves some uncertainty in what is frequently a stressful situation. To that end, it is helpful to understand basic game theory concepts.
Game theory is a field of study concerned with strategies for dealing with competitive situations where the players’ choices of action take into consideration the actions of other players. Game theory has been applied to military tactics, business competition, marketing, evolutionary biology, and legal matters such as plea bargaining and negotiations.
As applied to responding to an RFI, some useful game theory concepts are Complete Information and Imperfect Information. Complete Information is a situation in which all the players know all the rules of the game, but may not be sharing information. Conversely, Imperfect Information is a situation in which the players in a game are not aware of every move that has been made by the other players, and thus certain players are at a disadvantage.
In responding to an RFI, practitioners frequently do not know what information OED possesses regarding their case, thus Imperfect Information is the situation that most often applies. For example, a practitioner may not be aware of crucial information including: (1) the date on which OED first received information forming the basis for the grievance; (2) whether OED communicated with a third party regarding the matter; and (3) whether OED has impacted the attorney-client relationship by contacting other clients of the practitioner.
While working with a practitioner with a wide range of OED experience can be helpful, understanding the process can also assist practitioners in estimating the risk and benefits of certain courses of action. Importantly, the “game” that OED is playing is to protect the public. The staff attorneys work tirelessly to protect the public from bad actors, but must also work to justify and preserve their role as necessary enforcers of the USPTO Rules of Professional Conduct.
While OED is motivated to instigate investigations and bring them to resolution, it is not a “zero-sum” game, in which any gain by one player is at the expense of another player, or “winner-take-all,” which can have only one complete winner and one total loser. Convincing OED that an attorney’s conduct lacked the willfulness requirement under the Administrative Procedure Act is crucial to ensure an amenable outcome for all parties—one that ends in a “win-win” resolution. As in the classic game theory example “Stag Hunt,” sometimes all the players can achieve a greater gain by cooperating rather than competing. Of course, when OED appears interested in public discipline, rather than a mutually agreeable result, it helps to have an experienced player on your team.
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