Lawyers owe a duty to their clients to practice competently and to exercise independent professional judgment. As the Supreme Court recently reminded us in Sigram Schindler Beteiligungsgesellschaft MBH v. Lee, the duty to exercise independent professional judgment cannot be delegated to the client.
In Sigram, an experienced attorney signed and caused to be filed a petition for writ of certiorari consisting of 36 pages of pseudo legal-factual “mumbo jumbo.” Indeed, the question presented in the petition was:
Does the US 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, or does the US Constitution for such decisions entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?
The body of the petition gets no better. One of the arguments reads:
[121 S.II/III] tell: “{∀SPL test} ≡ FSTP-Test” 7.a) Thus, familiarity 7.b) with the FSTP-Test8) pays. It tests, ∀interpretations/TT.0s of a CI, their inventive concept sets satisfying ∀necessary ˄ sufficient and precise legal criteria 6) for CI’s passing its SPL test. For SPL testing a CI, the FSTP-Test hence needs ∀TT.0s of CI ∀ their compound inventive concepts and ∀ their elementary inventive concepts – as recognized and input by the user. Its fully automatic guidance greatly sharpens his/her such cognition processes by forcing him/her – by prompting to input blindly trusted answers to ∀ questions of the FSTPTest as to ∀TT.0s of a CI – to iteratively identify ●) ∀ inventive concepts of TT.0 and to check ●) ∀ their necessary ˄ sufficient relations for their holding6) ftn 8) is the FSTP-Test from [121 8.b) ], fixed 7.c) by test.9 to model Alice concisely.
Not surprisingly, the Supreme Court denied the petition. The Court also sua sponte issued an order to show cause why the attorney “should not be sanctioned for his conduct as a member of the Bar of [the Supreme] Court in connection with the petition.” See In the Matter of Discipline of Howard Neil Shipley, No. D-2827.
The attorney’s response admitted that the client “significantly contributed” or was the “primary author” of the submission. The response explained the client “insisted that the petition be filed using his preferred locutions, acronyms, and prose, and he [the client] retained close control over the substance of the petition.” The Response further argued the attorney was faced with a “difficult choice between (1) filing an unorthodox petition that reflected his client’s work product; or (2) withdrawing from the representation of his client of several years.”
The Response further stated that “the final product was certainly not what [the attorney] would have filed if he were representing a more deferential client, he and his colleagues made good-faith efforts to accommodate both their client’s intense desire to control the substance of the petition and the duties they owed to this Court as members of the Bar.” The attorney framed this as a “duty of loyalty” issue, stating that he was well aware of the “competing demands of the duty of loyalty that he owed his client and the duty that he owed th[e] Court as a member of the Supreme Court Bar,” but chose to prioritize one over another.
The Supreme Court cut the attorney a break and did not impose discipline. Instead it utilized this case as an opportunity to “remind” counsel of their non-delegable duty to file papers written “in plain terms.”
The takeaway from the Supreme Court’s decision is that a lawyer’s professional judgment cannot be compromised by his or her client. Lawyers owe duties not only to their clients but also to opposing parties and tribunals in which they practice. A lawyer must be mindful of these competing interests and may not bow to a client’s demands if doing so would result in the lawyer's violation of his or her other ethical duties, including the duty to exercise independent professional judgment and to practice competently.