Wednesday, November 5, 2014

Lawyer Receives Accolades From Judge -- And Is Then Sanctioned

Stop me if you've heard this one.

A lawyer presented oral argument to a panel of the Federal Circuit concerning a patent issue. Apparently, the lawyer did very well. A judge on the Federal Circuit, who was not on the panel and who is presently retired from the court, happened to attend a judges-only luncheon held following oral argument. At the luncheon, the panel judges informed the now-retired judge that the lawyer performed exceptionally well. The retired judge was proud to hear this good news, as he was a friend of the lawyer. The retired judge sent a laudatory e-mail to the lawyer. The e-mail stated:

Note that the retired judge was not on the panel that heard oral argument. And note further that the retired judge specifically invited the lawyer to "let others see this message."

So, what happened? The lawyer sent copies of the retired judge's e-mail to clients and prospective clients. And what happened next? Once the Federal Circuit learned that this e--mail of accolades was circulated by the lawyer, the court en banc issued an order publicly sanctioning the lawyer for distributing the e-mail. A copy of the court's order is here. The court determined that the lawyer's distribution of the e-mail constituted unprofessional conduct in that it inferred the lawyer's ability to improperly influence the court.

Note, finally, that the retired judge was not a part of the en banc court, but apparently the three judges, who gave the high accolades to the retired judge, were.

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