Legal Ethics

Federal appeals court blasts attorney for forwarding chief judge's congratulatory email

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After receiving a congratulatory email earlier this year from the sitting chief judge of the U.S. Court of Appeals for the Federal Circuit, a prominent patent lawyer did what the email expressly suggested and forwarded the praise to others.

Edward Reines sent the email to more than 70 current or prospective clients, pointing out how unusual it was and urging recipients to keep it in mind “as you continue to consider us for your Federal Circuit needs.” Now the Federal Circuit has reprimanded the Weil Gotshal & Manges partner for doing so, calling his action “conduct unbecoming a member of the bar” that is prohibited by Rule 46 of the Federal Rules of Appellate Procedure.

Reines had argued, in response to a June court order requiring him to show cause why he should not be sanctioned, that his conduct was protected under the First Amendment. However, the court was not persuaded.

In a Wednesday en banc ruling (PDF), the court said Reines should have known better than to forward the email because it, as well as his own comments, implied “a special relationship with then-Chief Judge [Randall] Rader and the Federal Circuit.”

Citing a 1985 decision by the U.S. Supreme Court that said courts, in determining what conduct violates Rule 46, should consider “case law, applicable court rules, and ‘the lore of the profession,’ as embodied in codes of professional conduct,” the appeals court held the ABA Model Rules of Professional Conduct were applicable to the email issue.

It then found that Reines’ forwarding of Rader’s email violated Rule 8.4(e) of the Model Rules, which says it is professional misconduct for an attorney to “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.” Hence, the en banc panel held, Reines also violated Rule 46 of the Federal Rules of Appellate Procedure.

Although the Federal Circuit opted for a public reprimand, after weighing mitigating factors, including an apology by Reines and Rader’s express authorization to forward the email, the court’s rebuke of Reines may not be the final fallout attributable to the email.

The panel said it is submitting to the California State Bar for its consideration a separate potential disciplinary matter involving “the exchange of items of value between Mr. Reines and then-Chief Judge Rader” including backstage access at two concerts arranged for Rader by Reines. The lawyer had cases pending before the Federal Circuit at the time, the opinion states.

While California bar authorities consider the issue, a protective order will keep confidential filings in the Federal Circuit email matter that relate to the potential California disciplinary matter, the opinion says. Whether to make these filings public at some point in the future will be up to California bar authorities.

Reines did not immediately respond to a Wednesday afternoon phone message from the ABA Journal.

Hat tip: Above the Law.

Related coverage: “Federal appeals judge to retire, teach IP classes after controversial email to patent lawyer”

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