Dear Foreign Associate,
I’m sorry that we missed each other at INTA in Singapore. My schedule was so full that it just didn’t work out. I hope you had an enjoyable conference, as I did. My colleagues and I met up with some foreign associates that we have known for a number of years, some of them for almost as long as I have been going to INTA (since 1998) so that we regard them as personal friends. Incidentally, knowing that our clients’ matters are properly taken care of helps me sleep better at night.
So, as we didn’t meet, allow me to set out for you some of what we may have discussed, had we met.
Not the dreaded “R” word
I know that we all grew up in different business cultures, and as a trainee it’s difficult not to adopt the prevailing values, particularly when one of those values is thought to be directly affected by our relationships with our foreign associates. That value, of course, is Reciprocity.
Don’t get me wrong. Reciprocity is not a bad word. I will never refer to it as the (dreaded) “R” word. Reciprocity can be bad, but it can also be amazingly good. That all depends on what we understand by it, how it influences the way that we each represent our own clients, and the way that we jointly represent each other’s clients.
Let’s first of all discuss our clients. We contract with our clients to provide them with professional services, to the full extent of our professional and ethical abilities. That’s what they pay us for.
Clients want us to ensure that the “job” will get done in the best way that gives them the rights that they want, at a reasonable cost and within a reasonable time frame. They normally don’t know you, our foreign associate, directly and they thus rely on us to arrange their representation in a professional, timely and cost effective manner.
That means that they don’t want us sending you their cases because we expect to receive work back from you or because we “owe you”….
Clients normally don’t know exactly what needs to be done in order to obtain IP rights in your country. They do know that we are not qualified to secure their rights in your country, but they do rely on us to seek out good representation. The last thing that they want us to do is to turn their business assets into part of a barter arrangement, so as to become entangled in your interests and ours. That’s the bad side of Reciprocity. And whether it is based on counting cases or dollars, it makes no difference. And some might even call this a conflict of interest.
I mentioned that there is a good side to Reciprocity. And here it is. It’s called having a healthy relationship. Had you and I met at INTA, we may have spent time chatting over coffee or a meal; we may have discussed interests, hobbies, family and the like. We would for sure have discussed professional matters, but we would, to a certain extent, have gotten to know each other as a person, not merely as an email address, LinkedIn profile or as a WhatsApp or WeChat account.
And how do I know this? Well, apart from the experience of having met countless associates from around the world over many years, many of whom have become friends, there is an unofficial litmus test that exists.
If I know you, I’m more likely to send you work
When choosing a foreign associate in your jurisdiction, one of the first things I think of is ‘whom do I know?’. I don’t mean ‘whose name have I heard of, or can I find on a list’. I mean, ‘with whom have I met and had a conversation?’ and, if my client were to ask me (a) “Have you met this person with whom you plan to entrust the securing of my valuable IP rights?” and (b) “What is she or he like as a person? What impression do they give, both personally and professionally ?”, I feel good knowing that I can say “yes, I have met them, and I believe you to be in good hands.”
NB If I really don’t know anyone from a specific jurisdiction, I will often request referrals from other foreign associates whom I hold in high regard.
Going the extra mile
Part of this ‘getting to know each other’ means that I know that we’ll be there for each other if necessary; we each will go the extra mile for each other’s clients so as to avoid or solve problems or to save unnecessary expenses.
When good reciprocity exists, it means that both sides trust each other to act properly on behalf of their clients. True, it will often lead to an exchange of work; but not out of any formal or informal business obligation, rather, simply because we trust each other to faithfully represent our clients’ interests while charging reasonable fees. But no one is keeping count; that’s not what happens in a relationship.
Gaining a Friend
So, dear Foreign Associate, had we met, I am sure that we would have discussed some of the above values, and we would both have gained a friend in each other’s jurisdiction.
So, until we meet, I wish you an enjoyable and healthy summer or winter, one of which is almost certainly getting under way, depending on where you are in this ever-shrinking global village in which we ply our trade.