Appellate Practice

Lawyer who reacted to judge's question with incredulity is ousted from 2nd Circuit courtroom

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A New York lawyer was ordered to leave a federal appellate courtroom Wednesday, just days after he was in the news for losing his bid to cancel a restaurant’s registered trade dress because it was demeaning to goats.

Lawyer Todd C. Bank of Queens reacted with incredulity to a question Wednesday posed by a judge with the 2nd U.S. Circuit Court of Appeals at New York, then sarcastically commented about the judge reading the briefs.

Law360 covered the contretemps. The New York Law Journal also has coverage.

Bank was appearing before the 2nd Circuit on behalf of a lawyer challenging a requirement for a character and fitness affidavit to gain admission to the Eastern District of New York.

Bank told the 2nd Circuit panel that his arguments had thoroughly been made in his briefs, so he would take any questions.

One judge said he didn’t understand why the appeal was filed, since Bank’s client controls whatever affidavit that is filed in the application for admission. Bank identified the judge as Denny Chin to Law360 and the New York Law Journal.

“If it’s not an affidavit that he likes, he doesn’t need to submit it,” the judge said.

Fear of a negative affidavit has nothing to do with this case, Bank responded.

The judge replied that fear was the given explanation for the perceived injury.

No, it wasn’t that at all, Bank said.

The judge asked: What’s the injury?

“Are you serious, judge?” Bank replied. “With all due respect, I don’t know what to say.”

“I withdraw my question,” the judge replied. “You can sit down.”

“Thank you very much, judge,” Bank said. “I see that you read the briefs thoroughly.”

“You are acting inappropriately,” Bank is told. “You are acting in a disrespectful and discourteous manner.”

After the government’s statement, Bank requested rebuttal. Bank was told that he had “waived” rebuttal and was excused. One of the judges then asked that Bank be removed from the court, and he was told to leave again.

Bank told Law360 in a statement that Chin’s claim that he didn’t understand why the appeal was brought “ignored what the essence of the case was about, which was the appellant’s objections, on constitutional grounds, of what he would need to do in order to obtain an affidavit in good-faith compliance with the Eastern District’s requirement to obtain one.”

In the trade dress case, Bank had challenged a restaurant’s registered trade dress for goats on a grass roof. The U.S. Court of Appeals for the Federal Circuit ruled that Bank’s concern about demeaned goats did not give him standing to challenge the registration.

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