CAFC Disciplines Patent Litigator Who Forwarded Former Chief Judge’s “BFF” Email To Clients

Michael E. McCabe, Jr.ABA Model Rules of Professional Conduct, Discipline, Federal Circuit Ethics Decisions1 Comment

BFF emailOn November 5, 2014, the Court of Appeals for the Federal Circuit issued an order publicly reprimanding IP litigator Edward R. Reines.  See In re Edward R. Reines, 14-MA004 (Fed. Cir. Nov. 5, 2014) (en banc).  The discipline is the latest chapter in an unusual saga surrounding an email to Reines from former Chief Circuit Court Judge Randall Rader.  That email ultimately led to Judge Rader’s resignation from the court.

Mr. Reines frequently appears before the Federal Circuit, where by all accounts he is a steller advocate.  Earlier this year, Reines argued two cases back-to-back on behalf of Life Technologies Corp. to a Federal Circuit panel comprising Judges Prost, Mayer, and Chen.

On March 4, 2014, then Chief Judge Rader emailed Reines saying that over lunch one of his colleagues had remarked on Reines’ prowess against Wilmer Cutler Pickering Hale and Dorr partner Seth Waxman. According to the Federal Circuit’s opinion, the subject line of the email was “Congratulations.” The text of the email from Rader is as follows:

Ed,

On Wednesday, as you know, the judges meet for a strictly social lunch. We usually discuss politics and pay raises. Today, in the midst of the general banter, one of my female colleagues interrupted and addressed herself to me. She said that she was vastly impressed with the advocacy of “my friend, Ed.” She said that you had handled two very complex cases, back to back. In one case, you were opposed by Seth Waxman. She said Seth had a whole battery of assistants passing him notes and keeping him on track. You were alone and IMPRESSIVE in every way. In both cases, you knew the record cold and handled every question with confidence and grace. She said that she was really impressed with your performance.

Two of my other colleagues immediately echoed her enthusiasm over your performance. I, of course, pointed out that I had taught you everything you know in our recent class at Berkeley together . . . NOT! I added the little enhancement that you can do the same thing with almost any topic of policy: mastering the facts and law without the slightest hesitation or pause!

In sum, I was really proud to be your friend today! You bring great credit on yourself and all associated with you!

And actually I not only do not mind, but encourage you to let others see this message.

Your friend for life, rrr

Rader PictureReines circulated then Chief Judge Rader’s email to numerous existing and prospective clients, with accompanying comments soliciting their business based on the email. The majority of the more than 70 individuals who received the communication were lawyers, but some were non-lawyers.

Word eventually got back to the Federal Circuit questioning the propriety of Judge Rader’s “bff” email. In an open letter published on May 23, 2014, Judge Rader acknowledged he had “engaged in conduct that crossed lines.” While he said he “would never compromise my impartiality in judging any case,” he admitted that by encouraging Reines to share the e-mail, he “never expected that email to emerge as it did” but “realize[d] in retrospect that the e-mail constituted a breach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others.”

Initially, Rader stated he would step down from the Chief Judge position but remain as a member of the court. Two weeks later, Rader did an about face and announced his resignation from the Federal Circuit.

In July 2014, the Federal Circuit issued an order to Reines to show cause why his conduct in forwarding the email from Rader did not violate Model Rule of Professional Conduct 8.4(e), which states 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.”

Reines admitted forwarding the email but argued he did not imply any improper influence under Rule 8.4(e); according to Mr. Reines, he forwarded the email “because information about [his] skill at oral advocacy is an appropriate consideration in the selection of counsel.” Reines further argued that the imposition of discipline would violate his rights under the First Amendment.

The Federal Circuit rejected both arguments.

Initially the court noted that sending a complementary letter would not alone constitute a violation of Rule 8.4(e). In this case, however, the substance of the email, coupled with Reines’ statements accompanying the email, were inappropriate:

First, the email both explicitly describes and implies a special relationship between respondent 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 respondent and the then-Chief Judge. Respondent’s comments transmitting the email also convey a special relationship with then-Chief Judge Rader and the Federal Circuit. Respondent 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.

CAFC sealThe court concluded that Reines’ email “suggested that his special relationship with the court should be taken into account” in prospective clients’ decision to select counsel. Reines touted his role as chair of the 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.”  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” in violation of Rule 8.4(e).

The Federal Circuit also rejected Reines’ First Amendment challenge. The court held that a strong interest exists in protecting the integrity of the legal profession and in protecting the public from misleading commercial speech by attorneys. The compliments were centered in a private communication and both stated and implied a special relationship between Reines and Judge Rader. The comments to existing and potential clients invited retention of Reines in future matters based on this relationship. Attorney speech which “state[s] or impl[ies] an ability to influence improperly a government agency or official” is either misleading (because the attorney has no ability to influence the official) or, if true, solicits business based on an offer to improperly influence the public official.

In determining the appropriate sanction, the Federal Circuit was guided by the Model Rules of Disciplinary Enforcement. In mitigation was Reines’ absence of prior discipline, his remorse, and his history of public service. On the other hand, the court indicated it was concerned that Reines was not completely forthcoming in describing the closeness of his relationship with Judge Rader. Moreover, the fact that Reines publicly disseminated the email warranted a “public response” by the Court.  Thus, the court concluded a public reprimand was the appropriate sanction.

This is not the final chapter in Mr. Reines’ disciplinary story. The Federal Circuit identified another—completely unrelated—possible disciplinary violation: Judge Rader’s alleged receipt of upgraded concert tickets and backstage passes from Reines while Reines allegedly had matters pending before the court.  It is not entirely clear from the court’s opinion whether Judge Rader paid for these “accomodations.”  The Federal Circuit court did not address the merits of whether this other conduct violated any rules of professional conduct.  Instead, it referred the matter to California bar counsel for its consideration.

Mr. Reines thus faces the possibility of two state bar disciplinary proceedings in California.  First, he faces possible reciprocal public discipline by the California State Bar court predicated on the public reprimand ordered by the Federal Circuit.  Second, he faces at least the possibility of a disciplinary investigation into the concert ticket matter.

This is an unusual case for a variety of reasons.  First, it is rare when a judicial officer sends a glowing letter or email to an attorney who regularly appears before that officer and encourages the attorney to share the court’s personal views about the attorney’s prowess to others.   Second, the fact the judges at the CAFC were literally sitting around the lunch room extolling the virtues of an advocate speaks volumes about the advocate’s skills.  Indeed, it would only seem natural for the advocate, once learning of such praise, to share this news with the relevant world — in this case, clients.  The ethics rules demand caution when communicating “testimonials” to clients or potential clients.

If there is a lesson to be learned, it is that courts can and should take very seriously the public interest and perception that they are an impartial forum for resolving disputes.  Judge Rader undoubtedly meant no harm and was plainly excited and happy for his friend.  But that one unfortunate email, which probably took all of five minutes to write, cost a respected jurist his job and a respected attorney to be publicly disciplined.  One wonders after all they have been through if Rader and Reines still remain “friends for life.”

One Comment on “CAFC Disciplines Patent Litigator Who Forwarded Former Chief Judge’s “BFF” Email To Clients”

  1. Considering the fairly damning assertions and evidence presented on other IP advocacy sites readily found on the Internet regarding Judge Rader’s anti-Constitutional actions and attitudes towards individual inventors, a salacious so-called “BFF” letter is a paltry example of impropriety, by comparison.

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