Supreme Court Spares Patent Attorney From Discipline

Michael E. McCabe, Jr.Patent Attorney Disciplinary Matters, Supreme Court Ethics0 Comments

close callTalk about a close call.  Patent attorney Howard Shipley is no doubt breathing a sigh of relief today after the Supreme Court dismissed its December 8, 2014, Order to Show Cause why Mr. Shipley should not be sanctioned.

The Court issued its rare Show Cause Order after Mr. Shipley filed what his counsel characterized as an “unorthodox” petition for writ of certiorari.  Mr. Shipley admitted the petition was written by his client.  It drew the High Court’s ire because it was, in large measure, incomprehensible.

The Court’s March 23, 2015, Order reads simply as follows:

ATTORNEY DISCIPLINE

D-2827 IN THE MATTER OF HOWARD NEIL SHIPLEY

A response having been filed, the Order to Show Cause,

dated December 8, 2014, is discharged. All Members of the Bar

are reminded, however, that they are responsible—as Officers of

the Court—for compliance with the requirement of Supreme Court

Rule 14.3 that petitions for certiorari be stated “in plain

terms,” and may not delegate that responsibility to the client.

As discussed in our prior posting of this case (click here), the Supreme Court has wide latitude in imposing sanctions.  It has the power to, among other things, issue an order suspending or disbarring its members from the Court.

Because of the rules on reciprocal discipline, if the Court had imposed a disciplinary sanction such as a suspension or disbarment, then Mr. Shipley most likely would have received the same measure of discipline from the USPTO as well as other jurisdictions in which he is admitted to practice law.  Instead, the Court’s ruling could probably be best characterized as simply a warning and not public discipline – a significant distinction from the perspective of possible exposure to reciprocal discipline.

The cert petition that was the genesis of the Show Cause Order was written in technical jargon that some commentators characterized as “gibberish.”  The Court showed mercy in not imposing any sanctions.  Instead it utilized this case as a “reminder” to counsel of their non-delegable duty to file papers in the Supreme Court that are written “in plain terms.”

 

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