The SCOTUS disciplinary matter regarding Howard Shipley has generated a lot of internet commentary. (Links below.)
For background on the procedural history, see this article by James Ching. (It’s necessary to understand some of the procedural history before the matter reached the Court.) The matter focuses on a petition filed with the Court by Howard Shipley on behalf of an organizational client that was dominated by its founder, a strong-willed inventor, Sigram Schindler, who actively manages—actually, overmanages—his lawyers. The Court issued an order to show cause why Shipley should not be disciplined, but the Order does not specify what rules Shipley may have violated. (My earlier post had incorrectly said that the potentially unethical filing was an amicus. Although Schindler’s corporation had filed five oddly-worded amicus briefs in other matters, the present issue deals with the petition.)
As the internet discussion has progressed, we’ve seen a number of propositions discussed. For example:
1. Should the lawyer have consulted with the client about tactics and declined to file the brief in the present form? AFAIK, everyone, including me, says “yes.” There was obviously a client management problem and at some point late in the process the lawyer may have concluded that there was insufficient time to get a new lawyer in place. But it shouldn't have been filed.
2. Should the lawyer be professionally disciplined for failing to provide competent counsel? This one is difficult for me, because upon reading the petition, I do conclude that it isn’t what competent lawyers file. On the other hand, we don’t typically see professional discipline meted out when a legally sophisticated client likes the legal work and there’s no obvious causation of harm to the client based upon incompetence. Commenters to my earlier post and elsewhere do see a failure of competence. The notion is that the lawyer’s failure to exert more control over the brief led to the filing of a petition that could never be granted. The lawyer’s incompetence therefore must have hurt the client.
3. Should the lawyer be disciplined because he included a footnote giving significant authorship attribution to Schindler? The Court has “Guidelines” forbidding that. Shipley says he was unaware of that. I don’t see professional discipline for that. The brief could be stricken for that reason.
4. Should the lawyer be disciplined because the client wrote so much of the brief? Was that UPL? James Ching believes “it is clear” that Shipley aided Schindler’s UPL. Thoughts on that, anyone? If the client's CEO writes much or all of a brief and the lawyer reviews it and deems it appropriate to file, is that "clearly" UPL?
5. Should the lawyer be disciplined for the tortured syntax and odd rhetoric? In a comment to my previous post, I noted that USDC’s sometimes strike oddly worded briefs because of non-conformity with rules about “clear” presentations of argument or words to that effect and that the Court should have done that here. James Ching does a nice job laying out those sorts phrases in the Court’s rules—phrases like, “expressed concisely in relation to the circumstances of the case, without unnecessary detail,” and “short and . . . not . . . argumentative or repetitive,” and “stated briefly and in plain terms,” and ““direct and concise argument.” (I agree that the brief doesn't use "plain terms," but also note that a complaint most readers of the petition will have is that it's too concise.) Here are some passages from the petition that Ching singles out:
“The NAIO test hence is designed to verify of a CI that it is nonpreemptive by checking the problem identified and disclosed by the specification, which to solve CI is invented for, and by deriving thereof that all inventive concepts this CI is allegedly based on are indeed indispensable for the invention’s functioning such that it solves this problem.”
The first legal claim is that the Constitution requires “instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CI[‘]s” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents[‘] framework.”
Or this heading: “THE 3 DECISIONS VASTLY INCREASE CIs‘ LEGAL SAFETY, PATENT EXPERTs‘ & USERs‘ EFFICIENCY, PATENT-NONELEGIBILITY’s CONSISTENCY.”
As I said, I would have no problem with the Court striking the brief, but is this grounds for professional discipline? What say you, readers? I'd strike it, stating specific reasons, but not formally discipline.
Howard Bashman's round-up of coverage is here and here. David Hricik has thoughts here.
[edited for clarity since posting.]