The Judge, the Email and "Conduct Unbecoming a Member of the Bar"

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 appeals

Rule 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.

If you are interested, you can read more about the facts in this case, and the outcome, in the news stories you can find here and here.