(I clerked for Chief Judge Rader ending 18 months ago. Full disclosure done.)
The Federal Circuit’s Rules.
Under the Federal Circuit’s rules on attorney discipline (here), unless a disciplinary matter arises in connection with a pending case (e.g., I make a frivolous legal argument in an appeal, in which case the panel hearing the case deals with it), a standing panel handles disciplinary matters. Specifically Rule 4 provides:
(c) Standing Panel on Attorney Discipline.
(1) The Standing Panel shall conduct proceedings in any matter in which disbarment, suspension, or a monetary sanction over $1000 may be considered, or in any matter referred by a merits or motions panel.
(2) The Standing Panel shall consist of three judges, at least two of whom shall be active judges, appointed by the Chief Judge. The Chief Judge may serve as a member of the Standing Panel. The initial appointments shall be for one, two, and three year terms, so that the members’ terms are staggered. Thereafter, a member shall be appointed for a three-year term. A member who has served on the Standing Panel for three years shall not be eligible for appointment to another term until three years after termination of his or her last appointment
(3) The chairperson of the Standing Panel shall be the senior active judge.
The panel has authority to issue a show-cause order. Rule 5(b).
The panel must issue a decision. Rule 5(f) (“At the conclusion of a proceeding, a panel shall issue a final order in the matter. The order may direct the attorney or the Clerk to send a copy of the order to all other courts and agencies before which an attorney is admitted….”).
That decision is then afforded at least two subsequent reviews: after the panel decision, then rules regarding en banc hearings kick in:
An attorney may file a petition for rehearing by the panel or a combined petition for rehearing by the panel and suggestion for rehearing by the active judges of the court, or a majority of the active judges may order that a disciplinary matter be heard or reheard by them. Such a hearing or rehearing is not favored and ordinarily will not be ordered except when necessary to secure or maintain uniformity of the court’s decisions or when the proceeding involves a question of exceptional importance. Any such petition shall be filed within 30 days of the date of the panel’s final order. The procedures governing a petition for rehearing or a combined petition/ suggestion will otherwise be in accordance with the provisions of Federal Rules of Appellate Procedure 35 and 40 and Federal Circuit Rules 35 and 40.
What Happened Here?
No panel ever issued a show cause order; it was issued listing every active judge (except obviously CJ Rader). (The show cause order is attached to the end of the en banc opinion, here.) Thus, from the start the court was not following its own procedure.
Then, rather than issuing a panel decision, which would be subject to a motion for panel rehearing and rehearing en banc, without notice to Reines (that I could see) the court short-circuited the procedural safeguards in its own rules and issued an en banc decision. The rules on attorney discipline do not permit, so far as I can see, this process. Only after the panel decision do the ordinary rules that allow for sua sponte en banc proceedings kick in.
So what? Well, this is a disciplinary proceeding. They ruin careers. One argument, no appeal? No court in the land permits that that I’m aware of, and certainly no state.
Beyond that, what could he have done? He had in his brief said that he didn’t think an evidentiary hearing was necessary, but offered to appear. Had the court indicated that it was eliminating all rehearing rights, perhaps he would have expressly requested for a hearing.
But putting that to the side, the Court from the beginning did not follow its own rules in a quasi-criminal proceeding.
Would the outcome have been the same? Who knows. Does it raise questions about due process? I think so.
The substance is also interesting. More to come.