In a highly unusual move, the US Supreme Court issued an order last December requiring a Foley & Lardner lawyer to show cause why he should not be sanctioned in connection with the filing of a cert petition.   The order didn’t specify the problems with the petition.  Then again, it didn’t really have to — one look at the petition and your head will spin.  Here’s just one example of the petition’s prose:

“[121S.II/III] tell: “{?SPL test} = FSTP-Test” 7.a).  Thus, familiarity7.b) with the FSTP-Test8) pays. It tests, ?interpretations/TT.0s of a CI, their inventive concept sets satisfying ?necessary ^ sufficient and precise legal criteria6) for CI’s passing its SPL test.”

Notably, a footnote revealed the true author of the petition:  “Prof. Sigram Schindler, the primary inventor of the ‘453 patent, should be recognized for significant contributions to this Petition.”  (The esteemed Dr. Schindler, it should be noted, does not claim to be fluent in the English language.)

This week, the lawyer filed his response.  While acknowledging the unorthodox nature of his filing, he claimed that he was bound to follow his client’s instructions, as unconventional as they were.

Sure, the petition is pretty rotten, but does it amount to an ethical violation?  We’ll see what the high court does, but the lawyer’s actions (or inactions) certainly raise some questions:

Competence:  ABA Model Rule 1.1 — the first commandment, if you will — obligates a lawyer to provide competent representation.  It’s hard to see evidence of competent legal representation in a petition that “asks this Court to convey to this community its determination to get all courts short term taking into use these so implied enormous advantages.”

UPL:  By essentially allowing the client to write the brief, did the lawyer assist in the unauthorized practice of law?  It’s one thing for a client to review and comment on the lawyer’s work product, but it’s something else to entirely abrogate the responsibility to provide legal advice and sign your name to legal filings prepared by a non-lawyer.

Withdrawal:  So why didn’t the lawyer just withdraw from the representation?  He argued that withdrawal would have prejudiced the client or would have been futile, since any successor would have faced the same issue.  Maybe so, but Rule 1.16 mandates withdrawal if continued representation would violate the Rules; it also permits it if the client insists on taking action with which the lawyer has a fundamental disagreement.   As much as lawyers love getting, and retaining, clients, there are some circumstances where withdrawing from a matter is the wisest (or only) course.

To be clear, I am not suggesting that an incomprehensible argument cannot also be persuasive.  But Siggy Schindler ain’t no Gabby Johnson.

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