Monday, April 6, 2015

Money Talks | Editorial - New Jersey Law Journal

Money Talks | New Jersey Law Journal:
by the Editorial Board

"Back in December, the U.S. Supreme Court triggered an Internet squall when apparently peeved justices issued an order to show cause why Howard Shipley, a lawyer at Foley & Lardner in Washington, D.C., should not be disciplined. His offense—though unstated by the court—was apparently the filing of a bizarrely framed petition for certiorari in a case in which his client Sigram Schindler was trying to save his patent. Foley Lardner hired uber lawyer Paul Clement—a former solicitor general—who explained that Schindler is a German inventor and entrepreneur who "instructed" Shipley on how he wanted issues framed and argued.

Shipley, Clement explained, was trying to "balance" the client's right to control the "objectives" of the litigation (Rule of Professional Conduct 1.2) with the lawyer's own professional judgment about what is effective. One can't judge that argument without at least a taste of the "question presented" by Shipley as Schindler "instructed": "Does the U.S. 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—especially for 'emerging technology claim(ed invention)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 unanimous precedents framework..."

One need know nothing of patent law to know that the Supreme Court likely would not agree to answer such a convoluted question. But no matter how refined Clement's language, his argument boiled down to the fact that the paying client in this case sought to dictate the language of the petition—in other words, "money talks." Schindler—a brilliant and litigious inventor— has been the source of a lot of that. Lawyers, of course, are bound to abide by the client's objectives but only required to "consult" regarding tactics.

However, that message may be difficult to deliver effectively to a demanding client. So we can be grateful that the Supreme Court has given us a helping hand. The court "discharged" the order to show cause but added, "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.""

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