As you probably know, to become a lawyer in the United States, individuals must graduate from law
school, then (in most states) pass a bar exam and be admitted to practice in
that state by the state Supreme Court.
If a lawyer who has done all of that wants to also be admitted to
practice in federal court, he or she, as Wikipedia explains, must go through
an additional process:
Admission to a state bar does not automatically entitle an individual to practice in federal courts, such as the United States district courts or United States court of appeals. In general, an attorney is admitted to the bar of these federal courts upon payment of a fee and taking an oath of admission. An attorney must apply to each district separately. For instance, a Texas attorney who practices in federal courts throughout the state would have to be admitted separately to the Northern District of Texas, the Eastern District, the Southern District, and the Western District. To handle a federal appeal, the attorney would also be required to be admitted separately to the Fifth Circuit Court of Appeals for general appealsRule 46 of the Federal Rules of Appellate Procedure outlines what an attorney who is admitted to practice in at least one state, must do to qualify to practice before a U.S. Court of Appeals, like the Fifth Circuit. It also specifies what conduct will result in an attorney’s being suspended or disbarred from federal appellate practice or in his/her being disciplined for “conduct unbecoming a member of the bar.” Federal Rule of Appellate Procedure 46(c).
This post examines a recent opinion from the U.S. Court of Appeals for the Federal Circuit, in which it is deciding whether to discipline
an attorney admitted to practice before it.
In re Reines, 2014 WL 5649959
(2014). The court begins by explaining
that Edward R. Reines
is a member of the
bar of this court, having been admitted to practice on October 1, 1993. At that
time, he took an oath to `comport [himself] as an attorney and counselor of
this court, uprightly and in accordance with the law. . . . [Reines] has
appeared frequently before this court, and has served as the chair of the
court's Advisory Council.
This matter had its genesis in oral
argument held on March 4, 2014, in two companion cases: Promega Corp.
v. Life Technologies Corp., 2013–1011 and Promega Corp. v.
Applied Biosystems, LLC, 2013–1454. [Reines] represented the
appellants in both cases on appeal, and presented the oral arguments.
The next day, on March 5, 2014, at 3:24
p.m. EST, then-Chief Judge Rader sent a private email to [Reines]. In the
email, then-Chief Judge Rader, who was not a member of either panel, stated
that judges on the Promega panels at a judges-only lunch had
praised [Reines’] performance at the oral arguments. The email referred to a
special friendship between Reines and then-Chief Judge Rader. In the email,
then-Chief Judge Rader referred to Reines as `my friend’ and said, `[i]n sum, I
was really proud to be your friend today!’ Then–Chief Judge Rader closed with
`[y]our friend for life.’ The email also added an effusive endorsement by
then-Chief Judge Rader himself and contained an invitation to share the email
with others.
[Reines] then circulated the email to
no fewer than 35 existing and prospective clients, with accompanying comments
soliciting their business based on the email. The majority of the more
than 70 individuals who received it were lawyers, but some were non-lawyers. Respondent
told some recipients that this type of feedback was `unusual’ or `quite
unusual.’ . . .
In re Reines, supra.
On June 5, 2014, the Court of Appeals
ordered that [Reines] show cause as to
why his actions associated with the email did not warrant discipline by this
court, inter alia, because they violated Rule 8.4(e) of the American Bar Association's Model Rules of Professional Conduct. The Show Cause order is included as Attachment B to this order. Model Rule 8.4(e) provides
that it is professional misconduct for a lawyer 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.’ Model
Rules of Prof'l Conduct R. 8.4(e) (2014).
Reines responded to the show cause
order on July 7, 2014. [He] acknowledged forwarding the email to clients and
potential clients. Reines argued, inter alia, that he did not
imply any improper influence under Model Rule of Professional Conduct 8.4(e);
according to Reines, he forwarded the email `because information about [his]
skill at oral advocacy is an appropriate consideration in the selection of
counsel.’ Decl. of Edward R. Reines ¶ 19.
[He] also argued that ordering
discipline would be unconstitutional under the 1st Amendment. Reines included
statements of experts in legal ethics to support his arguments. Reines did not
request a hearing in this matter pursuant to Federal Rule of Appellate
Procedure 46(c). . . .
In re Reines, supra.
The court then outlined the standards that governed its
resolution of this matter:
It is initially important to review the
source of the court's authority. Federal Rule of Appellate Procedure 46 provides
that a member of the bar of a court of appeals is subject to suspension or
disbarment if he or she `is guilty of conduct unbecoming a member of the
court's bar.’ Fed.R.App.P. 46(b)(1)(B). Similarly, any attorney who practices
before the court may be subject to discipline `for conduct unbecoming a member
of the bar.’ Fed.R.App.P. 46(c). The Supreme Court has
interpreted Rule 46 to `require[ ] members of the bar to conduct
themselves in a manner compatible with the role of courts in the administration
of justice.’ In re Snyder, 472 U.S. 634 (1985). This court and
other circuits have imposed discipline under Federal Rule of Appellate
Procedure 46.
In determining whether an attorney's
conduct constitutes `conduct unbecoming a member of the bar’ under Rule 46,
courts are to be guided `by case law, applicable court rules, and ‘the lore of
the profession,’ as embodied in codes of professional conduct.’ In re Snyder, supra. These sources of
guidance include the code of professional conduct promulgated by the attorney's
home state bar. While state ethics rules `do[ ] not by [their] own terms apply
to sanctions in the federal courts,” a federal court “is entitled to rely on
the attorney's knowledge of the state code of professional conduct. . . .’ In re Snyder, supra.
Here, [Reines] is a member of the State
Bar of California. We have also adopted Federal Circuit Attorney Discipline
Rules, establishing procedures for attorney discipline, but not elaborating on
the substantive standard for imposing discipline. We conclude that with respect to the email
dissemination we should look to the Model Rules of Professional Conduct rather
than to the rules of any individual state. We note that other circuits
have imposed discipline by referring to the Model Rules of Professional
Conduct. We think that Model Rule 8.4(e) sets forth the relevant standard.
In re Reines, supra.
The Court of Appeals went on to explain that it had to consider
whether
disseminating the email violated Model
Rule of Professional Conduct 8.4(e). Rule 8.4(e) states that `[i]t is
professional misconduct for a lawyer to . . . state or imply 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.’ Model Rules
of Prof'l Conduct R. 8.4(e) (2014 ed.). `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).’ Lawyers' Manual on Prof'l Conduct
(ABA/BNA), at 101:703 (Mar. 30, 2011).
[Reines] argues that the dissemination
of the email was not improper because it did not suggest an improper influence
but instead was an `unusually generous compliment from an unnamed jurist . . . about
[his] skill at oral advocacy.’ . . . .
In re Reines, supra.
The court began its analysis of whether Reines was subject
to discipline, noting that
[w]hile the dissemination of
complimentary comments by a judge contained in a public document would not
itself constitute a violation of Model Rule 8.4(e), we
conclude [Reines’] actions violated the rule. First, the email both explicitly
describes and implies a special relationship between [him] and then-Chief Judge
Rader. The text of the email describes a close friendship between the two. The
email included the language, `[i]n sum, I was really proud to be your friend
today,’ and closed with `[y]our friend for life.’
The very fact that the email was a
private communication rather than a public document implies a special
relationship, and then-Chief Judge Rader's sharing of internal court
discussions (which would be ordinarily treated as confidential) about the
lawyer's performance in a pending case implies an unusually close relationship
between [Reines] and the then-Chief Judge. [Reines’] comments transmitting the
email also convey a special relationship with then-Chief Judge Rader and the
Federal Circuit. [He] described the email as `unusual’ or `quite unusual’ in
some of his accompanying comments, . . . and referenced his `stature’ within
the court and his role as chair of the Federal Circuit's Advisory Council. . .
.
Second, 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. Several
responses referred to the high opinion then-Chief Judge Rader and judges in
general had for Reines. Other responses specifically referenced the
friendship between [him] and then-Chief Judge Rader.
Third, the transmission of the email
did more than suggest that [Reines] should be retained because of his superior
advocacy skills. It suggested his special relationship with the court should be
taken into account. [Reines] touted his role as chair of this court's Advisory
Council, and stated that his `stature’ within the court had helped `flip’ a $52
million judgment in favor of his client and that he `would love to help [the
recipient of his message] do the same.’ . . . Another lawyer in [his] firm in
forwarding the email stated that [Reines] `knows the judges extremely well.’ .
. . Albeit [Reins] noted that he did not approve of the communication, he took
no steps to advise the recipient of his disapproval. . . .
Fourth, in sending the email to clients
and prospective clients, [Reins] sought to directly influence their decisions
about retaining counsel. He typically stated, `[a]s you continue to consider us
for your Federal Circuit needs, I thought the below email from Chief Judge
Rader might be helpful.’ . . . Prospective clients likewise stated that they
would consider it in making retention decisions.
Finally, the email itself and [Reines’]
comments accompanying the sending of the email suggested that Federal Circuit
judges would look favorably on the retention of [him]. Then–Chief Judge Rader
invited [Reins] to distribute the email to others. [Reines] suggested that
clients should `listen[ ] to . . . the Federal Circuit judges[.]’ . . .
In re Reines, supra.
The court then found that
[i]t would blink reality not to view [Reines’]
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’ ”Model
Rules of Prof'l Conduct R. 8.4(e) (2014).
In re Reines, supra.
It then took up the issue of discipline:
In determining the discipline to
impose, we look to `the existence of any aggravating or mitigating factors.’ ModelRules for Lawyer Disciplinary Enforcement R. 10(C)(4). In this respect, we
consider that [Reines] is generally well-regarded in the legal community and
has rendered important service to this court as the chair of its Advisory
Council and in other capacities. It appears that he has never previously been
disciplined. [Reines] has recognized that `it was a mistake to distribute the
Email, and [he] apologize[d] for having done so.’ Personal Statement of Edward
E. Reines. The violation involved an implicit suggestion rather than an
explicit statement of ability to influence. Then–Chief Judge Rader's invitation
to share the message with others also mitigates the impropriety of [his] action
though it does not excuse it.
We note, however, that we are troubled
by certain statements by Reines seeking to minimize his relationship with
then-Chief Judge Rader. Certain record facts suggest that the relationship was
closer than Reines' submissions indicate, suggesting that Reines did not fully
describe the nature and extent of the relationship. Finally, the fact that
Reines circulated the email extensively and that it became a matter of general
public knowledge warrants a public response by this court.
Under the circumstances, and
considering all the relevant circumstances, we conclude that a public reprimand
is the appropriate discipline.
In re Reines, supra.
The Court of Appeals ended its opinion by noting that
[i]n the course of considering the
email matter discussed above, we considered another matter relating to Reines.
This additional matter is separate from and does not directly involve the email
matter discussed above. This matter concerns the exchange of items of value
between Reines and then-Chief Judge Rader. On Reines' 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 Reines had cases pending before this
court. We do not decide whether Reines' actions violated standards of
professional responsibility. We have decided to refer this separate matter and
the underlying relevant documents to the California bar authorities for their
consideration.
In the ordinary course, having
concluded that a public reprimand is warranted, we would disclose the full
record of proceedings. See Fed. Cir. Attorney Disc. R. 10(b). We are
authorized, however, to maintain confidentiality of portions of the record. In
referring this matter to the California bar authorities, we have determined to
enter a protective order and place the filings relating to the matter under
seal since this does not concern a matter as to which we have imposed
discipline.
Federal Circuit Attorney Discipline Rule
10(b) allows for placing a `permanent protective order prohibiting the disclosure
of any part of the record to protect the interest of a complainant, a witness,
a third party or nonparty, or the attorney’ even after an order has issued. . .
. . The California rules also provide for confidentiality during the period of
investigation. Cal. Bus. & Prof.Code § 6086.1(b). We leave it to the
California bar authorities whether and when such materials should be disclosed.
In re Reines, supra.
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