Federal Circuit Benchslaps Prominent Patent Practitioner
But is the former chief judge really more to blame?
We’ve previously touched upon the ethics scandal that contributed to former Chief Judge Randall Rader’s resignation from the Federal Circuit. The gist of the scandal: Judge Rader sent an email to a prominent patent litigator in which he praised that litigator’s work; the litigator forwarded it widely, in an effort at business development; and Judge Rader eventually stepped down from the bench, admitting that the email “constituted a breach of the ethical obligations not to lend the prestige of the judicial office to advance the private interests of others.”
The Federal Circuit, presumably embarrassed by the whole matter, asked the praised patent partner to show cause as to why he shouldn’t get disciplined. Today the court came down on this leading litigator — hard….
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The lawyer in question: Edward Reines of Weil Gotshal, one of the nation’s top patent litigators. You don’t have to take my word for it; here is what Judge Rader wrote to Reines (from the court’s opinion):
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
Oy. Judges compliment lawyers like this all the time, but they rarely put it in writing — and rarely do they “encourage [the lawyer] to let others see this message.” That was pretty idiotic not wise of Judge Rader.
At the same time, Ed Reines took that encouragement to share and ran with it:
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Respondent 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….
[Reines] suggested that his special relationship with the court should be taken into account. Respondent 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.”
Who says Biglaw partners don’t know how to sell? That kind of shilling would make a used-car salesman blush. And make the Federal Circuit — sitting en banc, due to “the importance of this matter” — mete out discipline:
Pursuant to Federal Rule of Appellate Procedure 46, it is hereby ordered, adjudged, and decreed that Edward R. Reines, a member of the bar of this court, is publicly reprimanded for his misconduct in disseminating an email to clients and prospective clients that he received from then-Chief Judge Rader.
The Court also ordered Reines to send copies of its reprimand to “all courts or jurisdictions in which he is admitted.” Ouch.
But let me make a point in Reines’s defense — a point acknowledged in the Federal Circuit’s opinion, but not given sufficient emphasis, in my view. Judge Rader’s email explicitly stated, “And actually I not only do not mind, but encourage you to let others see this message.” If a federal judge praises a lawyer and then urges that lawyer to share the praise, can you really blame the lawyer for following judicial direction?
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People presume that judges, because of their high judicial office, act ethically. Unless the conduct is flagrantly wrong, like taking a bribe, people presume that a judge’s actions conform to legal and ethical rules. Part of me wonders whether Ed Reines’s conduct here violated good taste more than ethics — and whether the Federal Circuit is coming down on him so hard mainly out of its own embarrassment over the boneheaded ill-advised conduct of its former chief judge.
It should be noted that Reines and Rader aren’t out of the ethical woods just yet. The Federal Circuit notes but doesn’t dispose of another issue, concerning potentially problematic gifts:
In the course of considering the email matter discussed above, we considered another matter relating to Mr. 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 Mr. Reines and then Chief Judge Rader. 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.
Inquiring minds want to know: what concert? We’re guessing it wasn’t Katy Perry. Word on the street is that Reines and Rader checked out the Rolling Stones, which would seem demographically appropriate, and that Reines — who has personal ties with one of the band members — got them backstage.
The Federal Circuit kicked the Rolling Stones matter to the California bar for further proceedings. The record on that matter is being kept confidential for now, with the Federal Circuit “leav[ing] it to the California bar authorities whether and when such materials should be disclosed.” So more revelations about Reines and Rader might be forthcoming.
The timing of this opinion isn’t great for Judge Rader. He’s speaking tomorrow at UT Law’s Advanced Patent Law Institute, perhaps his biggest public appearance since his resignation from the bench.
We reached out to Ed Reines for comment but haven’t heard back from him yet. Perhaps he’s avoiding email for a while.
In re Edward R. Reines [U.S. Court of Appeals for the Federal Circuit]
Court Publicly Reprimands Ed Reines, Recipient of Email from then-Chief Judge Rader [Patently-O]
