At its private conference Friday, Feb. 26, the justices considered Donald Paul Rosen’s response to why he shouldn’t be disbarred from the U.S. Supreme Court bar, in In the Matter of Discipline of Donald P. Rosen, 15D2864.
Such responses are pretty rare.
In fact, disciplinary matters at the Supreme Court are pretty rare themselves.
About 5,000 attorneys are admitted to the Supreme Court bar each term, according Supreme Court Practice , a leading Supreme Court treatise. But research done by Bloomberg BNA shows that the court has only issued 136 orders to show cause from the start of the 2013 term to Feb. 26, 2016.
These are orders asking attorneys to explain why they shouldn’t be disbarred.
For example, on Dec. 7, 2015—a date that will likely live in infamy for Donald Rosen—the court issued the following order in his case: “Donald P. Rosen, of Carpentersville, Illinois, is suspended from the practice of law in this Court and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.”
Of these 136 show cause orders, 106 have been resolved, leaving 30 pending.
The attorneys in most of the cases that have been resolved—87 of the 106—were disbarred after failing to respond to the show cause order.
Five of the 106 resigned from the Supreme Court Bar.
Only 14 attorneys responded to the show cause order at all. And only one of those 14 responses convinced the justices that they shouldn’t discipline the attorney.
That was the case of IP attorney Howard Shipley, formerly of Foley & Lardner LLP.
Apparently Shipley had a demanding client who had a certain vision for how his Supreme Court petition should read, a Bloomberg BNA article recalls.
The Supreme Court show cause order was issued after Shipley filed a brief full of technical phrases and acronyms, like “ET Cis” for “emerging technology claim(ed invention)s.”
After hiring former Solicitor General Paul Clement to defend him, Shipley told the justices knew he wasn’t supposed to use jargon in petitions, but he said he was stuck between a rock and a hard place, or rather, “the competing demands of the duty of loyalty that he owed to his client and the duty that he owed” to the Supreme Court.
Ultimately the Supreme Court let Shipley off the hook—with an admonishment. After discharging the show cause order, the court said, “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.”
Ok, better than being disbarred I guess.
But for the remaining 13 attorneys that filed responses, they were nevertheless disbarred.
Rosen, however, hopes to buck those odds.
According to the Illinois bar, Rosen was “suspended on an interim basis and until further order of the Court” for “misappropriating $85,412.78 in escrow funds, making false statements to his clients and a police officer investigating his conduct, presenting fabricated bank records to the [Attorney Registration & Disciplinary Commission] in an attempt to conceal his misconduct, and providing false testimony during the disciplinary investigation.”
Rosen “attempted to blame his conversion of funds and fabrication of bank records on his 82 year-old mother,” the state bar said.
Here’s how Rosen puts it.
“In 2009 [Rosen] succumbed to a dog bite that tore through the tendon in his left hand and later exacerbated into an injury to his left shoulder that required surgery on his shoulder and bicep.”
Rosen “took significant doses of doctor-prescribed pain medication for his injuries,” his response says.
“While [Rosen] was semi-incapacitated, [his] mother flew to Illinois from Arizona to assist with non-legal work including management of [Rosen’s] banking and business affairs. During that time, [his] mother inadvertently transferred funds from [Rosen’s] trust account to [his] business account. When she discovered the error, instead of informing [Rosen], she hired a confederate to create false back records until she was able to redeposit the funds into [Rosen’s] accounts.”
The justices were originally set to consider Rosen’s response Feb. 19. Due to a memorial for Justice Antonin Scalia, however, the justices moved it to Feb. 26.
An order should follow shortly after. Good luck, Mr. Rosen.
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