How Appealing



Saturday, February 21, 2015

But the Federal Circuit didn’t care that the non-lawyer client was writing the briefs on appeal: The title of this post summarizes one of the more interesting gambits contained in the response to the U.S. Supreme Court’s order to show cause that Paul D. Clement filed earlier this week on behalf of Howard N. Shipley.

This line of argument proceeds as follows: (1) the lawyers at Foley & Lardner who were representing the appellant candidly advised the U.S. Court of Appeals for the Federal Circuit that their non-lawyer client was the principal author of the appellant’s briefs on appeal by means of a motion for leave to file a substitute reply brief; (2) possessing that knowledge, the Federal Circuit thereafter issued an order granting permission to file the substitute reply brief; and (3) the Federal Circuit’s opinion affirming the judgment did not suggest that the briefs the appellant filed were incomprehensible or otherwise deficient.

Although Foley’s motion for leave to file an amended reply brief could not have been more forthcoming in explaining that the client’s CEO demanded total control over the briefing of the appeal, it is noteworthy (and unmentioned in the response to the order to show cause) that the motion for leave to file a substitute reply brief was submitted as unopposed because the appellee had consented to the appellant’s filing of a substitute reply brief.

Also unmentioned in the response to the order to show cause is the fact that the order granting the unopposed motion for leave to file a substitute reply brief was signed by the clerk of court and bears no indication that the motion was considered or decided by any of the Federal Circuit’s judges. It is not uncommon for a federal appellate court’s clerk’s office to have the power to grant motions for leave to correct filings, especially where the relief that is being sought is not contested by the opposing party. If the order granting leave to file an amended reply brief were in fact issued by the Federal Circuit’s clerk’s office acting alone, as appears to be the case, it would be an overstatement to suggest that by granting such leave the Federal Circuit officially communicated its approval of the filing of briefs written by a non-lawyer client after having been fully informed of who the briefs’ principal author was.

That then leaves us with the Federal Circuit’s opinion itself, which did not communicate any displeasure with the quality of the appellant’s briefs. Experience teaches that different circuits and, for that matter, different individual judges within a circuit have differing views over the utility of policing the quality and professionalism of work presented to the court. I have little doubt that if an appeal involved incomprehensible appellate briefs and came before a Seventh Circuit panel containing either Circuit Judge Richard A. Posner or Frank H. Easterbrook, the lawyer who submitted those briefs would receive an earful at oral argument and might face an order to show cause why discipline should not be imposed when the appeal was decided. Other judges are satisfied simply to decide the cases before them and have no urge to take on the extra work of policing a lawyer’s discharge of his or her professional obligations.

Ironically, the argument that because the Federal Circuit permitted this to happen so should the U.S. Supreme Court now risks incurring not only the wrath of the Supreme Court, but also the wrath of the Federal Circuit, which might not view the case’s history quite the same way.

My two posts from earlier today discussing other aspects of this interesting matter can be accessed here and here.

Posted at 10:46 PM by Howard Bashman



“Flood of Briefs on the Health Care Law’s Subsidies Hits the Supreme Court”: Robert Pear will have this article in Sunday’s edition of The New York Times.

Posted at 5:11 PM by Howard Bashman



“U.S. Supreme Court to hear Muslim woman’s hijab case against Tulsa store; She was denied a mall job in 2008 because of her head scarf”: This front page article appears in today’s edition of The Tulsa World.

Posted at 3:08 PM by Howard Bashman



Additional thoughts on lawyer’s response to SCOTUS order to show cause for filing largely incomprehensible, client-written cert. petition: In my post from early this morning, I explained why I believe it is unlikely that the U.S. Supreme Court will end up imposing sanctions on attorney Howard N. Shipley for having filed a largely incomprehensible cert. petition on behalf of a corporate client that the client’s CEO insisted on drafting himself. Nevertheless, this is a close case, and I have given some further thought to the matter.

1, A lawyer’s professional responsibility to the client and the tribunal: Let’s hypothesize a lawyer who markets himself for hire to corporate clients who desire to brief cases pro se (acting through their non-lawyer CEO as the writer of all briefs). For reasons that are beyond the scope of this post, businesses that elect to incorporate are prohibited from appearing pro se in court through a non-lawyer owner, even if that owner is the sole proprietor of the corporation. This case illustrates that a market actually exists, to at least some extent, for attorneys to offer themselves for hire to serve as the signatories for client-written briefs. And it’s not as though the attorney would merely serve as a rubber-stamp. In the case that gave rise to the SCOTUS order to show cause, the lawyer ensured that the brief complied with formatting and word count requirements, and the lawyer also caused the client to omit what the lawyer viewed to be inappropriately harsh criticism of an unspecified Federal Circuit judge. So, my first question is whether a lawyer who held himself out for employment to clients offering to do nothing more than what Shipley says he had no choice but to do in this case would or would not be subjecting himself to professional discipline?

2. Should the prohibition on corporations appearing pro se through their non-lawyer owners in litigation be abolished? Now that corporations can exercise religious rights, is it an anachronism for corporations to remain prohibited from appearing pro se in litigation, at least where you have a closely held corporation? If the company that filed the cert. petition in question were allowed to file it with its CEO as the petition’s disclosed author, not only would the corporation have avoided incurring the costs of lawyers, but the author could have fully aired whatever grievances he wished to express about one or more Federal Circuit judges.

3. Is it credible to claim that sufficient time did not exist for the law firm to refuse to represent the client in filing a cert. petition in the U.S. Supreme Court? In this particular case, after a three-judge panel of the Federal Circuit ruled against the client, the client sought rehearing en banc. Once the three-judge panel ruled, a realistic probability for needing to file a cert. petition existed. Moreover, the deadline for a cert. petition is 90 days from the date on which the intermediate appellate court has issued an order denying rehearing. Thus, at least three months, and perhaps a much longer amount of time, existed for the law firm to tell its client that it would not file a largely incomprehensible cert. petition in the U.S. Supreme Court, even if the client insisted.

4. Counsel of record has explained himself, but has his law firm explained its conduct? A little over one month ago, Tony Mauro had a Supreme Court Brief titled “Foley Promises ‘Thorough Response’ to Supreme Court’s Sanction Threat.” Although most of Mauro’s article remains behind a paywall that’s impenetrable even to me, the article’s first sentence is freely accessible. It states: “Foley & Lardner is preparing ‘a thorough response’ to the U.S. Supreme Court’s unusual show-cause order last month that could result in sanctions against Foley partner Howard Shipley, the firm’s general counsel says.”

To be fair, the law firm of Foley & Lardner was not ordered to show cause itself, and therefore perhaps it is not surprising that the response that the lawyer filed does not address the larger question of how this highly respected law firm permitted this petition to be filed bearing its name. According to the law firm’s Wikipeda entry, Antonin Scalia “was a summer associate in the Milwaukee office.”

The truth of the matter is that a Biglaw firm is only as strong as its weakest link. Moreover, few if any large firms require court filings approved by one partner to attain further approval from anyone else before they are filed. Whether the lawyers involved in this matter will be allowed to continue practicing law at Foley & Lardner in the long term is something that only time will tell. At a minimum, however, this case does serve as a teaching opportunity for law firms of all sizes, and those law firms should not assume that the lessons to be learned only need be taught to new lawyers. The lawyers involved in this case were nowhere near brand new.

Posted at 2:31 PM by Howard Bashman



“The End of Public-Employee Unions? The Supreme Court has been asked to take a case that could deal a crippling blow to the labor movement.” Law professor Garrett Epps had this essay online yesterday at The Atlantic.

Posted at 12:00 PM by Howard Bashman



“Ken Paxton asks Supreme Court to void same-sex marriage”: Chuck Lindell has this front page article in today’s edition of The Austin American-Statesman. You can freely access the full text of the article via Google.

The Texas Tribune reports that “Paxton Asks Court to Void Marriage License of Gay Couple.”

And Reuters reports that “Texas attorney general aims to void marriage license for same-sex couple.”

You can access at this link the mandamus petition that the State of Texas filed yesterday in the Supreme Court of Texas.

Posted at 11:55 AM by Howard Bashman



“Foley Partner Responds to SCOTUS Show Cause Order: I had no choice and you’re overreacting.” David Hricik has this post today at “Patently-O.”

My thoughts on the matter appear in this post from early this morning. In the final paragraph of my post, I wrote: “Perhaps the Court will appoint an attorney to brief the other side of this issue, and then hold oral argument.” A case in which something similar occurred in the Third Circuit can be found here and here. (Yes, I should have followed my own advice way back in May 2002 and installed the italics font pack for that brief.)

Posted at 11:26 AM by Howard Bashman



“2 Nominations Under Fire: Questions grow about Wolf’s choices for open seats on the Pa. Supreme Court.” Angela Couloumbis, Craig R. McCoy, and Robert Moran have this front page article in today’s edition of The Philadelphia Inquirer.

In today’s edition of The Pittsburgh Tribune-Review, Brad Bumsted and Adam Smeltz have a front page article headlined “Wolf nominee to top court causes stir with controversial email.”

And Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has an article headlined “Pa. Supreme Court replacements, once considered a hopeful sign of Harrisburg honeymoon, are prompting second looks” that begins, “No one’s given up on the prospective Pennsylvania Supreme Court careers of Duquesne University School of Law Dean Ken Gormley or Centre County President Judge Thomas Kistler yet. But their confirmations suddenly don’t look like the legislative waltzes they appeared to be just days ago.”

Remind me, which appellate law commentator was it who quoted Lao-Tzu in suggesting that these two seats should simply be left vacant throughout 2015?

Posted at 10:12 AM by Howard Bashman



“Judging Statutes: 5 Thoughts About The Use Of Legislative History.” David Lat recently had this post at “Above the Law.”

Posted at 9:28 AM by Howard Bashman



“A lawyer seeks the Court’s mercy”: Lyle Denniston has this post at “SCOTUSblog.”

I have now read the response to the order to show cause that Paul D. Clement has filed on behalf of the attorney who was ordered to show cause why discipline should not be imposed. As one might expect, Clement presents a persuasive argument for why discipline should not be imposed.

Unfortunately, the U.S. Supreme Court did not specifically identify what transgressions attorney Howard N. Shipley had engaged in that resulted in the Court’s issuance of the order to show cause why discipline should not be imposed. Was it: (1) submitting a largely incomprehensible cert. petition; (2) crediting the corporate client’s CEO as the drafter of the cert. petition, in violation of a Court publication that advises against attributing authorship of court documents to other than those attorneys appearing on the brief; or (3) the unfortunate yet obvious manner in which (1) and (2) combined, thereby allowing the Court to recognize that an attorney’s filing of an incomprehensible cert. petition resulted from ceding control over the contents of the document to the client.

This now public spectacle, which the Court’s order to show cause put in motion, is unlikely to have a satisfactory resolution, other than for legal ethics teachers, who can use the facts of this matter and the arguments contained in Clement’s response to generate an endless number of hypotheticals for their students to consider.

No doubt many lawyers, trying to do their best on behalf of their clients yet without ceding control of the text of a cert. petition to their clients, all too frequently end up filing incomprehensible cert. petitions. The “punishment” these lawyers receive is the “cert. denied” that inevitably follows. Moreover, I feel confident that Clement would never cede control over the text of a Supreme Court filing to one of his clients, if an incomprehensible brief were to result, no matter how much money the client was willing to pay for the opportunity to display Clement’s name on the cover of its filing.

With one exception, Clement’s response seems to characterize Shipley’s role as analogous to a vastly overpaid appellate printer, ensuring that the cert. petition complied with the court’s formatting and word-limit requirements. The one exception is that Shipley ensured that the petition omitted improper criticism of a particular Federal Circuit judge, whom the response fails to identify by name.

The reason the outcome here is likely to be unsatisfactory is that if Shipley avoids sanctions, which I think he likely will in light of Clement’s response, one possible conclusion is that an attorney operates within professional standards in signing his or her name to a brief written by a client if the client so insists, even if the brief is largely incomprehensible and thus has no chance of success. Moreover, Clement repeatedly suggests that Shipley’s client should not have been forced to forgo filing a cert. petition containing the client’s own preferred wording of arguments, even though the Court’s denial of that cert. petition without calling for a response from the respondent would suggest that the cert. petition as submitted did not present a plausible case for review.

Even if the U.S. Supreme Court opts not to impose any sanction, no doubt this lawyer and his law firm have paid a price. Paul D. Clement doesn’t come cheap for one thing. And for another, anyone who performs a Google search on Howard N. Shipley will find not only his impressive law firm bio but also plenty of coverage of this matter (see here and here, for example).

In any event, thanks to the Court’s new openness in disciplinary matters, we should learn of the resolution of this matter in due course. Perhaps the Court will appoint an attorney to brief the other side of this issue, and then hold oral argument. That would certainly be a sight to behold.

Posted at 12:25 AM by Howard Bashman