Foley Partner Responds to SCOTUS Show Cause Order: I had no choice and you’re overreacting

The full response is here:  Shipley_Response

Foley went all out, hiring Paul Clement to write it.  Boiled (way way down – it’s 41 pages), the approach was to say that the client wanted this petition this way, and the client is in charge of the goals of the representation.  “I had no choice and you’re overreacting,” might be the headline.

Here’s the introduction:

In this case, attorney Howard Shipley had to reconcile the competing demands of the duty of loyalty that he owed his client and the duty that he owed this Court as a member of the Supreme Court Bar. Mr. Shipley’s client had deeply held views about patent law and insisted on articulating his basic argument (that the Federal Circuit was ignoring the guidance of this Court) in his own words, as he had done in prior amicus briefs filed in this Court by other counsel. The result is an unorthodoxpetition that clearly and faithfully reflects the views of the client, right down to the client’s favored locutions and acronyms employed in his other writings about the patent system. Mr. Shipley counseled the client and helped to ensure that the petition complied with this Court’s rules on matters such as format and the necessary components. The petition is not the one Mr. Shipley would have filed for a more deferential client, but the petition undoubtedly reflects his client’s wishes and instructions.

Mr. Shipley certainly had the option to withdraw from the representation, but doing so likely would have prejudiced his client’s ability to pursue the last legal option available to save his patent from invalidation. And, of course, even if Mr. Shipley had withdrawn, any substitute counsel retained by Dr. Schindler would have faced the same dilemma as Mr. Shipley. Mr. Shipley ultimately did not withdraw, and he made the arguments his client wanted this Court to hear. That decision was a good faith effort to reconcile the competing demands of the ethics rules. Other lawyers may well have made a different choice, but Mr. Shipley’s decision does not amount to sanctionable misconduct. The proper remedy for filing an unconventional or difficult to-follow certiorari petition should be denial of the petition (or rejection of the filing), not disciplining the lawyer who filed it.

And the conclusion:

In a perfect world, lawyers and their clients would always be on the same page in terms of both the goals of the representation and the means of pursuing this goals. In the world in which we actually live, lawyers will inevitably face competin demands to their clients and to the tribunals in which they practice. Here, Mr Shipley chose to hew closely to his client’s explicit instructions, while working in good faith to help ensure compliance with this Court’s rules, even though the result was an unconventional filing. In doing so, Mr. Shipley elected to file the petition rather than withdraw from the representation of a longstanding client in a manner that likely would have prejudiced the client’s ability to seek Supreme Court review at all.

Reasonable lawyers can differ over whether they would have filed this petition under their signature. But Mr. Shipley respectfully submits that his good-faith efforts to accommodate the competing ethical interests at stake do not reflect conduct unbecoming a member of this Court’s Bar, and should not result in a sanction that would have very serious consequences for his career.

I personally agree that, in this particular case, this is probably the right place to go, and the Court has, no doubt, sent a message to lawyers.  So, hopefully the matter will go away. But, I could see the court trying to say “you have a choice, but we overreacted” to try to affect things more.

We’ll see.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

27 thoughts on “Foley Partner Responds to SCOTUS Show Cause Order: I had no choice and you’re overreacting

  1. 7

    What a laugh. First off, Foley is the instrument of my personal abuse at the hands of IBM Kenexa, so may only the worst happen to that firm and its reputation. Schadenfreude indeed.

    But really, the arguments are the classic echoes of any elite malfeasance. “Oh the poor man has been embarrassed enough already” or Oh, it would be too disruptive and disproportionate to hold him to the letter of the rules” or “Oh everybody has learned their lesson from this so lets look forward, not backward”

    The citizens of the USA pay a LOT of money for the Supreme Court to function. We expect that papers filed to the court should be more than nonsense ranting you may find on a street corner somewhere being emitted by a drunk or a crank. We expect that our elite lawyers will exert SOME quality control of these papers and not submit client ramblings as their own work.

    Is it too much to ask that some real penalty apply? Oh the poor man’s CAREER is at stake! Oh dear, get the smelling salts how can the nation survive it?

    We already know how the patent bar will feel about it. As a man on the street? I hope they throw the book at him.

    link to

    1. 7.1

      Care should be taken, Mr. Snyder, lest your enjoyment of Schadenfreude and critique of another’s rambling visit you and your ramblings here.

      There be a reason why your counsel has asked you not to so ramble, eh?

      1. 7.1.1

        I’m easily capable of making a mistake or three anon, you should not worry yourself so much. I figure if I always tell the truth and express opinions explicitly as opinions, it’s worth the personal pleasure of venting and the social value of exposing the blatant hypocrisy of our most eminent user of the patent system. Plus I have learned a lot about this most interesting area of law and business; knowledge is hard won and prized…


          You quite miss the point of my post, Mr. Snyder.

          Enjoying the misery of others, in the name of some cosmic karma, no matter the knowledge gained, comes at an avoidable karmic cost.

          Perhaps there is a cosmic reason why you continue to suffer…

  2. 6

    This response is nonsense. I don’t believe this. The attorney’s job is to shape the client’s views into something that has a chance before the court. The real question is did the attorney do this? I don’t think so. It would have meant a lot of hours that probably could not be billed.

    The attorney could have presented the client’s arguments in some type of coherent form. He didn’t. If the client really demanded that the arguments be presented as they were, then he should have refused to submit it.

    But really the SCOTUS is overreacting. I don’t think there is any case law on this that I know of. So, the punishment should be merely a warning not to do this sort of thing again or there will be a real punishment.

    1. 6.1

      Agreed. If, as he says, the client was insistent on the indecipherable wording presented, he should have known that wording was unacceptable and should have withdrawn from representation.

  3. 5

    Boiled (way way down – it’s 41 pages), the approach was to say that the client wanted this petition this way, and the client is in charge of the goals of the representation.

    It seems to me that dictating virtually the entire text of the petition goes way beyond being in charge of the goals of the representation.

  4. 4

    Schindler also filed his comments on Alice here: link to

    When I first read this it left me scratching my head. Even though English is not his first language, I don’t think his writings make sense in any language. Look at the Unabomber manifesto: link to
    Same type of rambling, incoherent nonsense.

    I can see why the Supremes had a problem with this. But I’d hate to see Shipley’s career ruined over something like this.

    1. 4.1

      That is some weird writing. I am not sure that I really get any meaning from it beyond a phrase or two that seem to have meaning.

      1. 4.1.1

        I suspect the original author has some type of mental deficiency. I wasn’t trying to be funny when I posted the Unabomber manifesto, but this type of rambling nonsense is probably indicative of some disorder (the Unabomber was also very intelligent and went to Harvard). I really tried my best, but I just can’t find any organization, meaning, or concrete point in any of Schindler’s writings.

  5. 3

    I thought that the Shipley petition for relief from sanctions was too apologetic and defensive. In my view, the petition should have discussed Shipley’s affirmative duty as a lawyer to allow his client to put forward his interpretation of patent law and that such was thought to be Constitutionally protected speech under the First Amendment. I think Shipley and his firm ethically did the right thing and should have argued the ethical and Constitutional dimensions of that position. My understanding is that the client arguments were not totally frivolous nor offensive, but perhaps misguided, perhaps hyperbolic and not the usual scholarly discourse customary in SCOTUS briefs that come from favored authors of SCOTUS briefs. Attorney speech before a court is certainly more restricted than client speech, nevertheless both attorneys and courts have a duty to allow clients to put forward their views. The punishment against Shipley far exceeds any damage done which, as far as I can tell, was essentially none.

    1. 3.1

      It is interesting to see the juxtaposition of those who feel that disbarment would be too harsh with those that do not feel so.

      Truth be told, I have never submitted anything to the Court.

      That being said, and with an eye of maintaining due respect – and in particular avoiding undue respect – I bristle at the notion that somehow the Court is above reproach merely because of “form” rather than content.

      The Court itself wih its own actions and its own writings has provided far more embarrassment than any client-driven submissions to the Court.

      To me, this smacks of a spoiled child, accustomed to deference no matter what using the power of her station to instill fear – not respect.

      Attorneys (and lower appellate courts) should not be made to feel rebuked without serious cause. In a patent analogy, the distinction between objection and rejection comes to mind.

      Would not the more appropriate course been an objection to form (with possible limited time to correct) rather than the grandiose circus we now see?

      1. 3.1.1

        While I agree that dismissal of the petition with an objection as to form might seem more appropriate, the petition was weird. Arguing against my own prior statement above, the signature of an attorney on a petition constitutes ownership of the document. I went back after writing a defense of our colleague and looked at the petition and it should not have been filed by a SCOTUS bar member with so much of the client language apparent in the petition. The brief was trying to say something about the standard of patentability for emerging technologies, a cogent issue, but the language was not intelligible. While public reproval and disbarment seem quite harsh, the Court obviously wishes to emphasize professional responsibility for document submissions.


          And what of responsibility of the Court itself (re: the utter CF of 101 – define “Abstract” and the whole “Gist/Abstract” sword obliterating the wax nose thereof?)

          Don’t we – even as lowly scriviners – deserve more?


            Yes, we deserve more. The Court could have cut some slack here but did not. Why? Many (most?) of the petitions for cert that are submitted lack a Constitutional issue deserving review and so they are quietly dismissed. This petition is a stand out because it provoked anger that is highly unusual. The petition reveals language that makes no sense to an ordinary reader and, for the Court, language is its currency. No bitcoin currency allowed.

    2. 3.2

      I largely agree, Mr. Schneck. I have represented a lot of clients whose positions I had to, um, re-work significantly.

      But, the punishment is levied, already.

  6. 2

    Shipley chose wrong, simple as that.

    What is the proper sanction? Why one must observe that practicing before the Supreme Court of the United States is a high honor and a privilege that should not be abused. Shipley abuse that privilege, and I think the proper sanction is to remove him from the bar.

  7. 1

    While recognizing the Court has a little more leeway in that this action here is not backtracking against a made decision,…

    …do you really think the Court has enough humility to admit that it overreacted? I think that while perhaps in some small way, the charge is correct, I think it is a mistake to try to corner the Court into making a decision that will de facto carry the message that the Court is either that petty, or ironically that “weak” that it would admit to being that petty. The sense of “royalty” (read that as a near-fanatical-religious sense of “infallibility”) will be offended in any path the Court takes in NOT sanctioning the violation of its own rules. As we saw in Prometheus, the Court will not allow its musings to be made into “dead letters.” The Court MUST not allow itself to look petty or look “wrong” in being petty.

    The child commenting that the King is parading n@ked will be shushed.

    (Further, and on the merits, the Court is not likely to set the precedent that its rules should so easily fall behind ANY mere mortal client’s preferences)

      1. 1.1.1

        As with many things (e.g., Supreme Court interference with 101), I too “hope to be wrong,” but alas, think that I am correct.

    1. 1.2

      The filings are incoherent gibberish. When Schindler first spammed my inbox (among many others), I thought that a mentally ill person had written them and had incorrectly associated himself with a Foley & Lardner attorney. I thought there was no way a credible attorney would knowingly sign and file such drivel, for any amount of money. Most patent attorneys come into contact with an “eclectic” client at some point in their career, and somehow work it out so they serve more than a mere conduit of drivel. Whether he is sanctioned by the Supreme Court or the USPTO (which would be appropriate) or not, the attorney should be ashamed of himself, and such conduct should be shamed by the patent bar.

      1. 1.2.1

        Sunny B (any relation to SunnyD?), I guess my point is that they’ve made that point. This guy’s been embarrassed, a lot, I would think. I suspect internally at his firm this was very hurtful for him personally and his career.

        So, perhaps the Court will write an opinion that reiterates the role of counsel in briefs and that lawyers do have a choice, but then do nothing more (except, perhaps, a public reprimand, which they’ve already done).

        I personally have only filed two, I think, briefs in SCOTUS and man did I take them seriously….


          Alas, Prof. Hricik, a three act play is not stopped at the intermission between Acts Two and Three.

          The show must go on.

          To do as you suggest and not respond further is to court “the heresy” of appearing “too weak.” It just won’t do to allow for the appearance of being weak after being petty. Oh no, it is “far better” to appear resolute and firmly petty, all the way through.

          After all, even if the King is naked and parading through the streets, his actual clothes are back at the castle, so he should continue to, um, ‘strut his stuff’ until he gets back there, eh?

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