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— Part 2 —
Critiques of the Judiciary
A good lawyer knows the law;
A great lawyer knows the judge.

American Folklore

Judicial Endorsement of Attorneys, Part 1

On November 5, 2014, the U.S. Court of Appeals for the Federal Circuit publicly reprimanded attorney Edward R. Reines for disseminating to clients and potential clients an email he had received from Randall Rader, Chief Judge of the Federal Circuit, containing highly complimentary comments regarding Reines' skills as an attorney.  The judge, a close friend of Reines, encouraged him to circulate his endorsement to others, which Reines did in connection with soliciting the business of clients.

The Court was of the opinion that Reines' actions violated Rule 8.4(e) of the American Bar Association's Model Rules of Professional Conduct, which provides that it is professional misconduct for a lawyer to "state or imply an ability to influence improperly a government agency or official..."  The Court additionally found that "recipients of the email also viewed it as suggesting the existence of a special relationship between [Reines] and then-Chief Judge Rader and perhaps other judges of the court."  It also found that, "in sending the email to clients and prospective clients, [Reines] sought to directly influence their decisions about retaining counsel."  "A lawyer who suggests that he or another lawyer is able to influence a judge or other public official because of a personal relationship violates Rule 8.4(e)."

Following Reines' public reprimand, a regretful Judge Rader resigned his position as chief judge, and shortly thereafter resigned from the bench.  The question of judicial ethics in the granting of endorsements remains a matter for concern.

Email Controversy Leads to Reprimand of Weil Gotshal Patent Lawyer
November 5, 2014

The nation's leading patent court on Wednesday ordered a "public reprimand" of a prominent patent lawyer, in a coda to a bizarre saga that earlier this year led the court's ranking judge to give up his post.

In a 14-page order, the 11 active judges of the U.S. Court of Appeals for the Federal Circuit reprimanded Edward Reines of Weil, Gotshal & Manges LLP for attempting to solicit clients with a laudatory email sent to him in March by Randall Rader, who was then chief judge of the court.

Mr. Reines did not immediately respond to a request for comment Wednesday.

Here's what happened, according to the order: Shortly after Mr. Reines argued two patent cases earlier this year at the Federal Circuit, Mr. Rader sent him an email, letting him know that the judges on the panel thought he had done well. The email described a recent conversation in which another judge purportedly told Mr. Rader that Mr. Reines was "IMPRESSIVE in every way."

Added Mr. Rader: "I was really proud to be your friend." He also encouraged Mr. Reines "to let others see this message." He signed the note "Your friend for life, rrr."

Mr. Reines then shared the email with "no fewer than 35 existing and prospective clients," according to the order, partly in an attempt to drum up business.

In May, news of the email led to Mr. Rader's resigning his position as chief judge. Weeks later, Mr. Rader resigned from the bench. In a statement posted the day he stepped down as chief judge, Judge Rader said he regretted sending the email, adding that the email was "a breach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others."

The court, under its new chief judge, Sharon Prost, then took up the matter of Mr. Reines. In June, it asked him to "show cause why he should not be disciplined for conduct unbecoming a member of the bar." After hearing from Mr. Reines, the court on Wednesday issued its opinion: a public reprimand for violating an ethical rule.

According to the ruling:

It would blink reality not to view respondent's action as suggesting his retention because his special relationship would help to secure a favorable outcome at the Federal Circuit. Under these circumstances, forwarding the email to clients and potential clients "impl[ies] an ability to influence improperly a government agency or official to achieve results by means that violate the Rules of Professional Conduct or other law."

The court didn't explicitly lay out why the punishment wasn't more severe, like revoking Mr. Reines's ability to practice at the Federal Circuit. But it did raise several points that, in its eyes, "mitigated" the severity of Mr. Reines's behavior: Mr. Reines is "well-regarded" among the patent bar, and has never been disciplined before. Additionally, Mr. Reines, according to the court, recognized what he did was a mistake, and apologized for it.

A couple of interesting side points. First, the court rejected Mr. Reines's contention that he had a First Amendment right to disseminate "compliments received from judges," noting "a strong interest exists in protecting the integrity of the legal profession and in protecting the public from misleading commercial speech by attorneys."

And the court punted to authorities in California (Mr. Reines's home state) on another issue, one "concerning the exchange of items of value between Mr. Reines and then-Chief Judge Rader."

Wrote the court:

On Mr. Reines's side, he provided a ticket for one concert, at another concert arranged for upgrading to a standing area near the stage, and arranged for backstage access for then-Chief Judge Rader at both. Then-Chief Judge Rader paid for accommodations. This occurred while Mr. Reines had cases pending before this court.
Copyright 2015, Dow Jones & Company, Inc.

From: Ashby Jones, "Email Controversy Leads to Reprimand of Weil Gotshal Patent Lawyer," The Wall Street Journal, November 5, 2014, http://blogs.wsj.com/law/2014/11/05/..., accessed 01/26/2015.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.  Tulanelink is grateful to attorney Gary L. Zerman for pointing out this article.

Additional Reading
  • Jason Beehler, "Federal Circuit Reprimands Lawyer who Trumpeted Judge's Compliment," Ohio + Legal Ethics, December 11, 2014, http://ohiolegalethics.keglerbrown.com/?p=1396, accessed 1/26/2015.





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