A lawyer seeks the Court’s mercy
on Feb 20, 2015 at 6:06 pm
In an anxious plea not to be given a career-threatening punishment by the Supreme Court, a Washington, D.C., attorney — speaking through a high-profile Court advocate — argued this week that a frankly flawed petition he filed at the Court was the result of a difficult client’s demand to be the primary author, using the client’s own strange vocabulary. The attorney, Howard Neil Shipley, has been under a threat of professional discipline by the Court since December 8. His response, submitted Thursday and now on file, is here.
The Shipley response is a public document, but became available electronically on Friday in a post by a reporter covering the Supreme Court, Tony Mauro of the Blog of Legal Times.
Shipley’s response, filed on his behalf by widely respected Supreme Court lawyer Paul D. Clement, is a lengthy document that sought to explain why Shipley had filed a cert. petition on October 6 in the case of Schindler v. Lee for a German inventor and frequent litigant, Sigram Schindler. It was that document that the Supreme Court cited in ordering Shipley to show why he “should not be sanctioned.” The petition was denied on the same day that order was issued.
Clement’s filing recounts a lengthy history of professional dealings with Schindler by Shipley and his colleagues at the Washington firm of Foley & Lardner LLP. In several court filings, Clement related, Schindler has insisted on “retaining primary control over the substance” of those filings and insisted that the documents use “his preferred locutions, acronyms, and prose.”
The specific Supreme Court petition, Clement conceded, was “an unorthodox” document that was “difficult to follow at times” about Schindler’s legal complaint that the U.S. Court of Appeals for the Federal Circuit was failing to follow Supreme Court precedents on patent law. The petition sought to overrule a Federal Circuit decision that had gone against Schindler’s claimed invention of a form of artificial intelligence for use in computer technology.
Clement argued that the Court almost never imposes discipline directly against attorneys, reserving such punishment as a “reciprocal” response to disciplinary action taken by another court. Clement said that his research had revealed that the Court itself had punished an attorney for a filing directly in the Supreme Court only once in the past fifty years.
Insisting that Shipley’s actions on the cert. petition were taken “in good faith” and in a determined effort to carry out his client’s wishes while at the same time following the Court’s procedural rules, Clement argued that Shipley’s actions should not result in any form of discipline. Any punishment of an attorney by the Supreme Court, Shipley’s filing said, would have potentially “serious consequences” for that lawyer’s career.
The Supreme Court appears to have complete discretion about whether to discipline a member of its Bar, and what kind of punishment to mete out.