Details on SCOTUS' Sanction of Patent Attorney Howard Shipley
What does it take to get disciplined by the Supreme Court Bar? How about letting your client write the briefs? Back in December, the Court issued an order to attorney Howard Shipley to show cause why he shouldn't be sanctioned for his conduct in connection with a cert. petition in the case Sigram Schindler Beteiligungsgesellschaft MBH v. Lee.
That was a patent case dealing with claim construction, but patent watchers like the website Patently-O thought the petition looked a little weird. In fact, look at the petition for yourself: It's extremely weird and uses a tremendous amount of highly technical language and equations.
Well, that was no accident. Turns out that Shipley let the petitioner, Dr. Sigram Schindler, write the petition. Shipley, through his lawyer, the superstar (and former solicitor general) Paul Clement, filed that response to the show-cause order last week. We know that Shipley let Dr. Schindler write the brief because Shipley admitted as much.
Shipley framed this as a "duty of loyalty" issue; the only way for the client to adequately convey his "deeply held views about patent law" would be for him to write "his basic argument ... in his own words." So if Shipley had actually written the petition, he wouldn't have been adhering to his duty to the client, right?
Yeah, not so much. Shipley was well aware of the "competing demands of the duty of loyalty he owed his client and the duty that he owed [the] Court as a member of the Supreme Court Bar," but he chose to prioritize one over the other. Normally in situations where a lawyer's duties are in conflict, the lawyer withdraws. Shipley, though, said such a withdrawal would be futile, as it would prejudice Dr. Schindler's ability to file a petition, and the next lawyer would face the same problem anyway -- namely, Dr. Schindler's insistence on using "his preferred locutions, acronyms, and prose."
A Rule Violation, but How Much?
The Court's order was pretty vague, meaning, as Above The Law's How Appealing blog points out, we don't really know what conduct the Supreme Court objected to. The Supreme Court doesn't allow non-lawyers -- whether law students or research assistants -- to be credited anywhere in a petition, whether on the cover or in a footnote. Footnote 80 of Dr. Schindler's petition credits him for "significant contributions" to the petition, which is itself already verboten, though given the general incomprehensible nature of most of the petition, it's clear that footnote means "he wrote the thing." (Though Shipley does play up the largely irrelevant point that he helped Dr. Schindler with such prosaic things as layout and formatting.)
One reason we know anything about this case at all, SCOTUSblog observes, is thanks to the Court's newfound openness when it comes to attorney discipline. On February 1, the Court began publicly disclosing attorney discipline documents, which had previously been kept confidential. Though Shipley might not be disbarred, he could certainly face some other sanction just to let everyone out there know it's not OK for a represented client to write a brief and sign the attorney's name to it.
- I Knew Patent Law Was Hard, But ... (The Volokh Conspiracy)
- Foley Partner Responds to SCOTUS Show Cause Order: I Had No Choice and You're Overreacting (Patently-O)
- La. Prisoner Released, Dismissing Juvenile Life-Without-Parole Case (FindLaw's U.S. Supreme Court Blog)
- SCOTUS Oral Argument Preview: Week of February 23, 2015 (FindLaw's U.S. Supreme Court Blog)
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