Sperry v. Florida ex rel. Florida Bar

PETITIONER: Sperry
RESPONDENT: Florida ex rel. Florida Bar
LOCATION: Clauson's Inn

DOCKET NO.: 322
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 379 (1963)
ARGUED: Mar 25, 1963
DECIDED: May 27, 1963

Facts of the case

Question

Media for Sperry v. Florida ex rel. Florida Bar

Audio Transcription for Oral Argument - March 25, 1963 in Sperry v. Florida ex rel. Florida Bar

Earl Warren:

-- versus State of Florida on the relationship of the Florida Bar.

Mr. Moore.

Carlisle M. Moore:

Mr. Chief Justice, and may it please the Court.

In this case, petitioner who is a nonlawyer has been duly authorized by the Commissioner of Patents pursuant to federal statutes and rules to advise and represent applicants before the Patent Office in the preparation and prosecution of patent applications.

The petitioner resides in Florida and there carries on these activities.

The question presented here is whether the State of Florida has the power to enjoin petitioner from these activities merely because he is not a member of the Florida Bar, and the Court has forbidden such activities, and we feel that the Court was incorrect in the following specific portions of the injunction, wherein the -- enjoined the petitioner from rendering opinions as to patentability of inventions, from holding himself out in Florida as qualified to prepare and prosecute applications for letters patents, and amendments thereto, and from actually preparing in prosecution applications -- prosecuting applications for letters patents, and amendments thereto in Florida.

Arthur J. Goldberg:

It's your argument -- you're (Inaudible)

Carlisle M. Moore:

He can theoretically call himself a patent attorney because he was admitted to practice before the Patent Office prior to 1938 at which time even though he was a nonlawyer, he was entitled to call himself a patent attorney.

In 1938, the rules were changed so that nonlawyers thereafter registered with the Patent Office couldn't but there is a Grandfather clause which permitted those admitted before to still continue calling the same thing.

Arthur J. Goldberg:

(Inaudible)

Carlisle M. Moore:

Well, he can't call himself a patent lawyer.

A patent lawyer would be a term which he is not permitted to use.

He is not a lawyer.

Now --

Arthur J. Goldberg:

How can he be described?

Carlisle M. Moore:

He can describe himself as a patent agent or as -- as a patent attorney.

In this case, actually he has ceased to use the name patent attorney, although under the federal rules, he is permitted to do so.

This perhaps might be one of the engraftments on federal rules which might be permissible so that there wouldn't be any mistake as to what capacity he's operating under.

Now, he has voluntarily stopped using the term patent attorney.

Arthur J. Goldberg:

That issue is not before us.

Carlisle M. Moore:

That issue is not before us.

Potter Stewart:

Or whether an attorney means agent, doesn't it, it doesn't necessarily mean lawyer although a good many people think.

Carlisle M. Moore:

Well, my understanding is that originally attorney meant attorney in fact, and then as distinguished from attorney at law --

Potter Stewart:

Right.

Carlisle M. Moore:

And that I think that the normal interpretation of the word today, an attorney means an attorney at law.

I think that's the --

Potter Stewart:

If I give you a power of attorney because you're my attorney, you're not necessarily a lawyer although you have to be one.

Carlisle M. Moore:

Well, that would be giving me an attorney -- power of attorney in fact.

Potter Stewart:

That's correct.

Carlisle M. Moore:

And I think that usually they qualify it to be an attorney of fact rather than a straight attorney which I think to the general public which he's really most interested in what they are called.