In a rare U.S. Supreme Court disciplinary proceeding, the Supreme Court of the United States declined to discipline a partner at Foley & Lardner, but did issue a stern reminder that attorneys practicing before the court are responsible for adherence to Supreme Court rules, that court documents must be stated in plain terms and that attorneys cannot “delegate that responsibility to the client.”
The case arose when Howard N. Shipley submitted a petition for certiorari for a client with a patent dispute. The petition was “unorthodox,” and arguably resembled a pro se filing rather than the work product of an experienced big firm lawyer. Shipley also pointed out in a footnote in the petition that his client (the patent holder), “should be recognized for significant contributions to this petition.”
The Court apparently took exception to the relative incoherence of the petition, and to Shipley’s attempt to pin the blame on his own client.
So in December of 2014, as part of its regular orders, the Court issued a show cause ordercommanding Shipley to demonstrate why “he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for a writ of certiorari” in the case.
Shipley hired Paul Clement to represent him, and after briefing, the Court issued a very brief order discharging the show cause order, but stating:
“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. ”
Although the Court did not invoke any disciplinary rules, the case does call to mind Rule of Professional Conduct 1.2, which governs the allocation of authority between lawyer and client. Comment  to the Rule provides that the client has “ultimate authority” to determine the purposes to be served by legal representation, but only “within the limits imposed by law and the lawyer’s professional obligations.”
In other words, if you’re the attorney: you file it, you own it.