Last week, the United States Supreme Court turned more than a few heads when it issued an attorney discipline order against Howard Shipley – a partner at Foley & Lardner, LLC – for his conduct relating to a (denied) petition for writ of certiorari. The Supreme Court is demanding that, within 40 days, Shipley show cause “why he should not be sanctioned” as a result of his connection with the filing. Exactly why the Supreme Court is so upset has been the subject of much speculation.
While neither the Supreme Court nor Foley & Lardner have made any statements about the order, one fact is certain: Shipley has joined a very exclusive club. Supreme Court observers note that only once in the last ten years has the Court sanctioned an attorney on its own initiative. Most sanctions coming from the High Court are either in the form of reciprocal discipline (that is, when a Supreme Court bar member has already been ethically disciplined by another jurisdiction) or by motion from another party.
Given the rarity of a sua sponte show cause order, IP and appellate attorneys have taken notice. Few would disagree that the cert. petition itself is, at best, difficult to understand. Unless there is some sort of indication of willful disrespect (which does not seem to be the case here), however, poor writing would not, in and of itself, appear to be a legitimate ground for sanctions. So what went wrong? Some commentators believe the petition was drafted not by Shipley himself (although his name appears on the cover) but by Shipley’s German-speaking client. The speculation is that the foreign language draft was then machine translated and submitted “as is” to the Supreme Court. This might explain the unconventional phrasing and jargon, particularly in the all-important Question Presented, which reads:
Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – espec-ially for “emerging technology claim(ed in-vention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/ Bilski/Mayo/Myriad/Biosig/Alice line of un-animous precedents framework, or does the US Constitution for such decisions entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court prece-dents require – or meeting its require-ments just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?
The question presented is, frankly, gibberish. Moreover, many of the grammatical errors are so obvious that they should have easily been spotted by someone even without a law degree. Couple this with the unusual formatting choices, symbol and character errors, and font inconsistencies (many of which have been corrected in the blockquote for formatting purposes) also raises serious questions, the primary ones being: (1) how could a well-seasoned patent attorney, from a highly respected national law firm, have knowingly filed what appears to be a literal translation of a foreign language paper in the Supreme Court of the United States?; and (2) how could the law firm have let this happen?
At least two plausible explanations exist. One, Shipley failed to read the petition before it was filed. Or two, Shipley reviewed an earlier (presumably much better) draft, but the draft that was actually filed was not the draft he read. From an ethics standpoint, neither of these two possible explanations is particularly appealing.
Filing a document without reading it would be a clear breach a number of rules of professional conduct, including, for example, the rules governing competence, diligence, and an attorney’s duty to the tribunal. If what was filed was not the draft the attorney believed was going to be filed, then this raises issues of adequacy of supervision; an attorney in a management or supervisory position must take reasonable measures to supervise subordinate attorneys and staff.
Furthermore, filing a petition in the Supreme Court is, for most counsel, a pretty big deal. One wonders whether someone else at the firm, whether the putative author or another attorney, read the petition even after it was filed. Indeed, even a cursory post-filing review would have quickly uncovered the problems and, presumably, timely corrective measures could have been taken.
So what happens next? The Supreme Court’s rule on sanctions (Rule 8) is broad enough to encompass just about any ethical or professional violations:
1. Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, or has engaged in conduct unbecoming a member of the Bar of this Court, the Court will enter an order suspending that member from practice before this Court and affording the member an opportunity to show cause, within 40 days, why a disbarment order should not be entered. Upon response, or if no response is timely filed, the Court will enter an appropriate order.
2. After reasonable notice and an opportunity to show cause why disciplinary action should not be taken, and after a hearing if material facts are in dispute, the Court may take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar or for failure to comply with these Rules or any Rule or order of the Court.
It is possible that Shipley’s petition (or his review, or failure to review the petition) constitutes “conduct unbecoming a member of the Bar” or was the result of a “failure to comply with these Rules or any Rules or order of the Court.” Some facts may support the latter violation: Footnote 30 in the petition, for example, indicates that Schindler, and not the attorney of record, may have written a substantial amount of the document: ““Prof. Sigram Schindler, the primary inventor of the ‘453 patent, should be recognized for significant contributions to this Petition.” This alone already raises a red flag, as acknowledging non-lawyer contributors goes directly against the published standards for filings with the Supreme Court:
Names of other attorneys who are members of the Bars of the several states may be listed on the cover, but names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.
Of course, different clients will have vastly differing preferences on the role and input they have in their own cases. In this case, apparently Schindler wanted extensive control over what was filed; he had apparently had a conflict with Foley & Lardner as early as the Federal Circuit appeal. In its appellate-level reply brief, the law firm decided to omit some of Schindler’s suggested arguments, believing such additions were “not substantive or factual,” and amounted to nothing other than “word smithing.” After discovering the omissions in the reply brief, Schindler made a unique move – he filed a declaration in the CAFC, indicating that he was “very upset” with the firm’s decision to omit the arguments he had written without first obtaining his approval. Notably, paragraph 6 of Schindler’s declaration reads:
Although I rely on legal counsel, in actuality, I was the primary author the ‘453 Reply Brief. In fact, footnote 4 of the ‘453 Reply Brief recognized my “significant contributions to this Brief.” Legal counsel was supposed to revise the material I prepared, to correct grammatical and spelling errors and to reword phrases into proper English, as I am a native-German speaker. I was responsible for all of the content and was to review all content before filing, to retain complete control of the ‘453 Patent Reply Brief.
As noted above, the same footnote appears in the petition for certiorari, indicating that Schindler may have also been the primary author of the cert. petition. The action taken by the client in the Federal Circuit should have raised yet another red flag — in particular, was the law firm required to withdraw due to an ethical conflict of interest with its current client? The facts suggest that the relationship had soured, but whether that souring ultimately would have required withdrawal from the representation is difficult to judge without further information.
What does this all mean for Mr. Shipley? If he cannot come up with a plausible, good faith, well-reasoned explanation in response to the show cause order, he could face suspension or disbarment from the Court. And while that may not seem like much for someone who does not regularly practice before the Supreme Court, the real danger lurks below in the weeds of “reciprocal discipline.”
As we have discussed in our post of September 23, 2014, public ethics discipline in one jurisdiction can have serious reciprocal consequences elsewhere. An order suspending or disbarring Shipley from practice before the U.S. Supreme Court, for example, may result in the same discipline being imposed in the USPTO, the District of Columbia, and/or the Commonwealth of Virginia, where he is also licensed. Consequently, any response to the show cause order in the Supreme Court must be handled with the utmost care. The trickle down effect from an adverse decision by the Supreme Court could have dire consequences that reach far beyond the High Court.
At least one takeaway from this case is the danger that lies in allowing a partner (or any attorney for that matter) to file a paper without having that paper reviewed by at least another attorney. Even partners with years of experience make mistakes. Proper institutional controls may prevent, or at least mitigate, the potential for both ethical and reputational harm caused by an improper court filing.
— Brandon Harris, a 3L law student at The University of New Hampshire School of Law, co-authored this post.