Court Publicly Reprimands Ed Reines, Recipient of Email from then-Chief Judge Rader (to be updated)

By David Hricik

(Note:  yesterday when writing this, it struck me as odd that this was en banc (I don’t think that’s procedurally proper and it surely deprives Reines of any “appeal,”)  and some of the facts, upon critical thought, don’t make a lot of sense. I’m going to read the source documents.  Click on “ethics” above to keep reading.)

In early June, 2014, the Federal Circuit in an unusual per curiam order ordered Ed Reines to show cause as to why he should not be sanctioned for forwarding an email sent to him by then-Chief Judge Rader.  The Federal Circuit today issued an en banc per curiam decision publicly reprimanding Mr. Reines for his actions.  The opinion, In Re Edward R. Reines, is here.

The email from Chief Judge Rader that began the events reads:


On Wednesday, as you know, the judges meet for a strictly social lunch. We usually discuss poli- tics and pay raises. Today, in the midst of the general banter, one of my female colleagues inter- rupted 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 en- thusiasm 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

Consistent with his encouragement to let others see the email, Reines forwarded it to clients and potential clients.

The decision analyzed whether Reines’ conduct violated Model Rule of Professional Conduct 8.4(e). That rule 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.” The court noted that the ABA has stated that “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).” Id. (quoting Lawyers’ Manual on Prof’l Conduct (ABA/BNA), at 101:703 (Mar. 30, 2011)).

The court held that Reines had violated the rule.  Specifically, it reasoned:

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, Reines Ex. 4; Ex. 8; Ex. 44; Ex. 45, and referenced his “stature” within the court and his role as chair of the Federal Circuit’s Advisory Council, Reines Ex. 38.

Second, recipients of the email also viewed it as suggesting the existence of a special relationship between respondent 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 Mr. Reines. 5 Other responses specifically referenced the friendship between respondent and then- Chief Judge Rader.

Third, the transmission of the email did more than suggest that respondent should be retained because of his superior advocacy skills. It 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.” Reines Ex. 38. Another lawyer in respondent’s firm in forwarding the email stated that respondent “knows the judges extremely well.” Reines Ex. 49. Albeit respondent noted that he did not approve of the communication, he took no steps to advise the recipient of his disapproval. Decl. of Edward R. Reines ¶ 21.

Fourth, in sending the email to clients and prospec- tive clients, respondent 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.” Reines Ex. 11.7 Prospective clients likewise stated that they would consider it in making retention decisions.8

Finally, the email itself and respondent’s comments accompanying the sending of the email suggested that Federal Circuit judges would look favorably on the retention of respondent. Then-Chief Judge Rader invited respondent to distribute the email to others. Respondent suggested that clients should “listen[] to . . . the Federal Circuit judges[.]” Reines Ex. 30.

Id.  Based upon this analysis, the court stated that it would “blink reality” to pretend that forwarding the email did not imply a special relationship with the judge.  Id.

The court then determined that the penalty would be a public reprimand.  Not only had Reines acknowledged he had erred by forwarding the email, the court found mitigation in the fact that he had been encouraged to do so, and, further, because it was not an express but was an implicit statement that he could influence the court.

After rejecting a First Amendment challenge, the court ended with two somewhat curious observations. First it stated there was a separate issue that it was referring to the California bar concerning an exchange of gifts:

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.

The court did not decide the issue but referred it “and the underlying relevant documents to the California bar authorities for their consideration.”  Id.

Second, the court stated that it was maintaining certain documents relating to the investigation under seal.  It stated that it was doing so “since this does not concern a matter as to which we have imposed discipline.”  Instead, it was leaving “it to the California bar authorities whether and when such materials should be disclosed.”  Id.

My Comments.

I clerked for Chief Judge Rader ending about 18 months ago. I never perceived him to be influenced by anything other than the merits of a case — period.  I also know he has a tendency to be effusive (that is putting it mildly) in emails.  As a result, the context of Chief’s emails to anyone who knows him discounts some of this.

But, in my view the court’s ruling was correct.  (Well, no it wasn’t.  See the ethics page by clicking above.)

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

114 thoughts on “Court Publicly Reprimands Ed Reines, Recipient of Email from then-Chief Judge Rader (to be updated)

  1. 26

    18 U.S.C. 201(b) – Bribery of public officials and witnesses
    Whoever — (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent – (A) to influence any official act; or ……

    A concert ticket is a thing of value. A seating upgrade and backstage access are acts of value.

  2. 25

    Where there’s smoke there’s fire.

    And now there’s more smoke than ever. It’s about as smoky as the backstage at a Rolling Stones concert, back when they were good.

  3. 24

    On tickets, etc. I was shown around the Federal Circuit building many years ago by one of the judges. There is a cafeteria in the Federal Circuit (I hope I am not breaking a confidence by revealing that fact) and its prices are very ordinary and modest. As a small recompense for the Judge’s kindness and time, I offered to pay for both lunch trays. However the Judge refused the offer on the grounds that he could not accept anythng from a person who might have a case before him.

    1. 24.1

      Similarly, I few years again ago I attended an East Texas Bench Bar, and before the event, I found myself having beers at a round table with six or seven patent attorneys and a sitting magistrate judge. When the bill came, someone offered to pay for the table. I drank on someone else’s table, but the magistrate judge made it a point to pay for his own beer.

    2. 24.2

      “There is a cafeteria in the Federal Circuit (I hope I am not breaking a confidence by revealing that fact) and its prices are very ordinary and modest.”

      I’m pretty sure that place is public bro, I ate in there np. Just walked right in.

  4. 23

    Following the slogan used in the UK during the second world war, were these proceedings really necessary? [Is your journey really necessary?].

    A judge may like a brief and believe that it is well written. He may consider an attorney to be a person of high ability. That is no indication that he believes what he reads, and even lay members of the public can appreciate that. In considering the right to a fair tribunal “appearance” is important but should not be gold-plated.

    In this episode I can only see profound sadness. This was a minor matter blown out of all proportion. In the UK there was a similar fuss about Lord Hoffmann and the Pinnochet affair, but Lord Hoffman kept his job and continued to give wise and valuable service for many years, handing down a number of superb opinions in patent appeals. Incidentally he is a general lawyer and not a specialist, but like many good lawyers he was a quick learn and gave world-leading opinions on patent matters involving complex technology.

    1. 23.1

      You might want to consider the common prescription to avoid the appearance of impropriety, in both public and private matters.

      This is the USA, and these things are in our codes of conduct.

      It is therefore necessary–and, I might add, completely worthwhile.

    2. 23.2

      This is not England — and the Judge encouraged him to send an email to clients. An email where he virtually gave this guy a reach around. Not cool, not ethical, and most likely not an accurate description of the practitioner’s ability. Makes you wonder what the true nature of the relationship was? Was money exchanged? Was the relationship more intimate?

      Then the guy — knowing good and well it was wrong and very close to if not squarely unethical — sent this email around to everyone and their dog that could give him work. Did his firm not weigh in on this at all before he did it? There were other attorneys at the firm that also circulated the email– making it even more public. At what point did the attorney realize that this would inevitably get exposed — the 3rd email or the 350th email –The exposure which lead to his so-called friends resignation. With friends like that — I would rather live in Antarctica.

      Overall, the practitioner’s firm does not have trouble getting high end legal work and this email circulation should have at least been limited to a very select potential clients if sent at all. The ethics committee and general counsel of his firm should have weighed in and stopped the circulation of the email. All of this makes you wonder who exposed the whole thing — a potential client or a party that came across the 100s of emails that were sent.

      word to describe the motivation behind this entire situation = GREED

      1. 23.2.1

        “You were alone and IMPRESSIVE in every way”

        Uhmm SOO TFW. how many times have you seen an attorney get up in open court “all by himself too” and kill it? Something is really wrong with how much this guy kissed the other guys ass — its a violation of bro code at least.

  5. 22

    Ahh, the civil service…the best and the brightest, right?

    For sure Randall Rader was an idiiot, here he reveals that he has no more good sense than an over-stimulated tween girl with a new smartphone.

    But, Reines! W T F ???

    THIS is the guy up whose bvtt Rader was pouring sunshine? Are you kidding me?

    His legal acumen is every bit the equal of another of Rader’s cronies, Dimwit Don Dunner.

    The Federal Circuit and its “in” practitioners is every day looking more and more like the cast of Green Acres.

  6. 21

    This sentence from the opinion caused some concern for me:

    “We have also adopted Federal Circuit Attorney Discipline Rules, establishing procedures for attorney discipline, but not elaborating on the substantive standard for imposing discipline.”

    Did Mr. Reines’ dissemination of the Judge Rader e-mail violate California State Bar ethics rules? If not, it seems somewhat troubling for the court to admit it has not previously said what substantive ethics rules apply to the Federal Circuit bar, then to rule that the ABA Model Rules apply, and then to find Mr. Reines’ conduct violates the Model Rules.

    Note that the sanction in In re Snyder applied the North Dakota Code of Professional Responsibility, and the cases cited in the court’s footnote 3 involved cases either where the ABA Model Rules had already been specifically adopted by the court’s local rules (Cordova-Gonzalez), or where there was a finding of a violation of state bar ethics rules in addition to the Model Rules (Girardi and Cook).

  7. 20

    David, I would be curious to know why you think it might be procedurally improper for the court to issue this en banc. The discipline rules seem to contemplate proceedings before either the merits panel or the Standing Panel, but I don’t see any procedural right for an attorney to seek en banc review of either panel’s decision. If the court is free sua sponte to order initial en banc hearing in a case, why would it not be free to do the same in an attorney discipline matter?

  8. 19

    Typical garbage from the court that has been reversed more frequently by SCOTUS than any other court. Reines simply did exactly what he was instructed to do by the chief justice of the court. If they reprimand him, then they have to disbar Rader. Not the outcome they want, I’m sure, but its the only logical outcome.

    1. 19.1

      You need to get more of those judges that are virulently against patents and don’t have a science background appointed to the Fed. Cir. More like Taranto and Hughes. That way we won’t have a patent system and you have paid your dues back to Google.

    2. 19.2

      Mr. President, you might want to brush up a bit on your appellate reviews. 9Cir and 6Cir are basically neck-and-neck for being most reversed, with the 6Cir pulling ahead in the stretch.

  9. 18

    Find the conduct by Rader of disclosing comments by fellow judges in the email quite appalling. Reines did more than share the email but Rader furnished the raw material. Has Rader ever been on a panel in front of which Reines appeared?

    The action by the Federal Circuit appears in part to be punishing Reines because his actions embarrassed the court. The matter should have been referred to the relevant state bar to deal with.

  10. 17

    Thank you all for some good comments. I agree with the general ideas that Chief’s email was not, itself, inappropriate but the problem was the text that went along with the forwarding. The timing and scope of the forwarding indicate some poof judgment, in my opinion, by Reines. (Another disclosure: I may have met Reines at some point, but I don’t know him.)

    I also agree that this court, unlike any other appellate court I’m familiar with, is very closely connected to its bar (for obvious reasons — specialization; DC location). Not sure that’s a net good or bad, honestly, as having access to judges at CLEs and so on is a very good thing, I think.

    My own view, granted hard for me to be objective, is that the email itself, alone, was fine, with the invitation to forward being misguided. He didn’t invite him to suggest using it the way he did ($52m). Again, my opinion is also based on the fact that I’ve received and seen emails from Chief that are pretty darn effusive. The man loves capital letters, for example, and is a kind, generous, good soul. Those qualities are not bad ones.

    1. 17.1

      David, RRR’s email contained either (i) confidential court info or (ii) lies masquerading as confidential info. Am I missing a third option?

      1. 17.1.1

        Ummmm, um, I am not sure that luncheon conversation about how a lawyer did is confidential court info. If that is true, could a judge ever say “you guys did great” to anyone? I sure hope that’s not the law.

        But I don’t know.


          You miss the point. One judge, without permission, forwarded in writing another judge’s thoughts expressed during a confidential discussion at the court. The sarcastic “ummmmm” just adds further evidence that you’re writing this piece as cover. Too bad. Former clerks should know better.


            The best explanation I heard was that Rader had a couple too many when he wrote the email.

            Seems like anyone could make a mistake like this.


            Judge Rich’s Ghost, I was responding to someone named “ummmmmm” and making a joke about his name by saying it. (Boo! If that makes it clear.)

            You raise a more refined point that he did: is a judge’s observation about a lawyer’s performance a court confidence? I don’t know the answer to that question, which sounds like a fine point of judicial ethics.


              Given the context of those court discussions, there’s absolutely no question about the confidentiality of the other judge’s remarks. Let’s reframe the fact pattern. Say a clerk had sent that e-mail, passing along a remark that a judge had made to the clerk about the attorney’s performance. Not good, and not permitted. I would have been let go if I had done that.

              All that being said, Rader was a good judge and a very considerate person. His (and your) NYT editorial was unbecoming. But he meant well. There’s plenty of bungling on both sides in this whole embarrassing episode.


              Does it matter if it was a “court confidence” or just an off-the-record remark to a colleague? Knowing when to keep your mouth shut is an indispensable skill for any decent lawyer, let alone judge. Whether Rader’s conduct constitutes a violation of some “fine point of judicial ethics” doesn’t change the fact that it demonstrates profoundly bad judgment. And I’m a Rader fan.


          I’ll give Rader the benefit of the doubt that Prost really did what he said. (Hard to imagine as it may be.) Rader had no business repeating her comment without her knowledge or permission. Also, if the case at issue was still pending at that time before Prost, it is really appalling. Imagine the advantage Reines gets in post-argument/pre-decision settlement negotiations knowing how well received his argument was.


          I am not sure that luncheon conversation about how a lawyer did is confidential court info.

          I don’t think it matters when or where the conversation was held, Professor. In any case, the en banc court disagrees with you:
          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.

    2. 17.2

      While I appreciate David’s defense of the former Chief Judge, it’s hard to imagine Judge Easterbrook or Judge Posner or Chief Judge Wood doing something analogous. This incident, more than anything else, supports the notion of eliminating the Federal Circuit and returning patent cases to the regional circuits.


          Because as we’re all aware, unless someone “shills” for the 7Cir, appellants from, e.g., SDIL will just decide to waltz down to Atlanta and visit the 11Cir instead?

    3. 17.3


      While it is possible that Judge Rader and Ed Reines did not have an inappropriate relationship, the facts as they are currently known raise questions:

      (1) Judge Rader says in the email “your friend for life”
      (2) Judge Rader says in the email “I was really proud to be your friend today”
      (3) Judge Rader and Reines had a relationship outside of the judiciary/professional world that included going to concerts
      (4) Judge Rader has publicly acknowledged that he “engaged in conduct that crossed lines established for the purpose of maintaining a judicial process whose integrity must remain beyond question.”

      Putting aside whether any cases were actually improperly influenced by Rader and Reines’ relationship, it is the appearance that matters here. To say that Rader’s email was not inappropriate ignores this fact. It would have been different had Rader made a public comment regarding Reines abilities, so as to avoid any appearance of a special relationship, and to allow others to know of it. Instead, Rader sent an email ex parte from his court email to Reines professional email (which raises its own questions of how much more ex parte conversations occurred between the two).

      This email did not discuss work matters, but given their relationship as described by Rader himself, would it be unreasonable for people to suspect that may have happened on occasion? Rader himself says that Reines is his “friend for life”, which implies much more than an acceptable professional relationship between the judiciary and those that practice in front of it (most of us do not have the benefit of merely ascribing this statement to a general effusive characted). Did Rader ever disclose this relationship when Reines was before him to the other parties, so that they could evaluate whether to seek recusal? If not, why not?

      Again, there is nothing that says that Rader was improperly influenced. But it is the appearance of partiality which does damage to our judicial system. I know I will scrutinize cases more closely if I see both Reines and Rader’s name on the opinion. That I would even think there is a need to do that is a great shame to our system.

      1. 17.3.1

        Another note:

        I’m not sure your comment is meant to imply that Rader is blameless in this story; Rader himself recognized that his email was inappropriate. He acknowledged publicly that “the email constituted a breach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others.”

  11. 16

    There is no rule against the use of the term or phrase patent attorney by an attorney that practices patent litigation or before the federal circuit. The pto does not have a monopoly on the word “patent.”

    1. 16.1

      Except it is commonly used to mean an attorney that has a state bar and has based the registration examination with the PTO. You can use the term, but since it has a common meaning unless you make it clear to clients what it means to you, then you could be misleading your clients. And, I think an objective standard would apply.

      1. 16.1.1

        Yes, this is analogous to the case where a person with a law degree, but who was not admitted to the bar, could not sign his name with J.D. The court said it would mislead the recipient to think the person was a lawyer admitted to practice law.


          That is seriously arguable — I’m not implying registration by stating I practice patent law –patent attorney is one that practices patent law. Also if the client is sophisticated enough to make this pointless distinction that prosecutors try to own, then they would not be mislead. If the client was not sophisticated, the use of the term patent attorney would not imply registration to a layman client. So no there is not bright line rule here and the use of that term is accurate to describe a patent litigator or appeal attorney practicing in federal court.


            I think you are. Look at your jurisdiction’s equivalent to Model Rule of Professional Conduct 7.4 and 7.1

            “Patent Attorney” implies that you are registered before the USPTO.

    2. 16.2

      Wrong. It implies a specialty that you don’t actually have, and it’s a violation of the ethical rule against advertising specialties under the model rules.


          The Answer/Karma/et al,

          While the Megan Fox comment may provide a pleasant distraction, you are not addressing the critical point under discussion. It is not up you to deem that you “have the speciality” – the body of law that exists does have a federal agency that regulated practice, and that agency has proscribed the use of the term.

          You are indeed NOT free to use the term if that use might cause confusion, and you are not the one to decide whether confusion might be caused.

          Of course, there is a subtle difference in saying that you cannot (at all) use the term**. But any use MUST abide by the rules as stated, and you are not free to ignore those rules.

          **for example, if you have not earned the particular federal agency right to use the term, you must make it clear in your use that you have not done so – such is a material fact that your clients must be informed of.


            A firm I know went through this with the OED. They backed off, because it ridiculous to try and monopolize the word “patent.” There is no rule that precludes use of the designation “patent attorney” for someone that practices patent law. This is absolutely ridiculous. Patent Attorney only mean prosecution? So what is the attorney that litigations a patent case doing? I understand the rules and the model codes state that you can’t claim specialty unless you are qualified. Claiming that you practice patent law when you do — is completely accurate. The PTO or the state bar has not and can not change the dictionary definition of terms used to very accurately describe what the attorney does for his/her practice. Unless there is something more like “registered” or “USPTO” or “patent prosecution” accompanying the patent attorney designation — I would take that ethics case any day on contingency and win every time.


              If you litigate patent cases — you are qualified and allowed to call yourself a “Patent Litigator” but not a “Patent Attorney?” Ok? A litigator is an attorney –so that doesn’t make any logical sense. If somehow the rules place patent litigators at risk on a ridiculous technicality like this one, then it makes sense to either change the rule to state that a patent litigator is also a patent attorney or to outright preclude use unless you are registered. The rules do neither — so I say what a joke. Why are we placing attorneys at risk for ethical violations on this ridiculous point. So prosecutors can feel special or to protect the public? The consequences for unlicensed practice of law have enough teeth and deterrent effect to not make this an issue, which clearly exposes attorneys that practice patent law to ethical violations. Complaints are filed by other attorneys or persons that may have bad faith motivation to file a complaint all the time. We should protect our attorneys; not make it overly burdensome or dangerous for them to describe their practice.

  12. 15

    Every judge has a legitimate interest in best possible advocacy skills. Every client has a legitimate interest in finding their way to the best advocates. Dennis tells us that Judge Rader always decides cases exclusively on their merits (and he should know, shouldn’t he). Randy can do that more reliably when each party is using advocates of the highest quality.

    And all of us have a very strong interest in the CAFC deciding cases rigorously and doing justice between the parties.

    So I can understand and accept why, on clear public policy interest, Randy invited Reines to share his mail. It helps all of us, no?

    BUT, if cases get decided on the basis of which advocate is closer to the judge is another thing entirely. If cases were decided in that way, it would undermine the Rule of Law and bring disrepute on the legal system of the country where it happens.

    In the higher reaches of related professions (judges and lawyers, police and mobsters, regulators and bankers, pols and media folk) there are always social interactions (and friends for life) at the highest level. That’s understood, and a fact of life, but those who reveal to the public that such activities are routine, or seek to leverage such activity to their own personal advantage, should not be surprised if somebody on a high horse then criticises them.

    Is Reines then a scapegoat or is he truly a naughty boy, for having put it about, and fed the myth, that what you need to win a case is in fact an inside track.

    BTW, is his name pronounced to rhyme with whines or pains? I thought I knew how to pronounce “Connolly” but then found out that there is more than one way to pronounce it. Ed might be famous but I still don’t know how to say his name. Will anybody enlighten me?

  13. 14

    This whole incident underscores how even at the very top levels of this field attorneys are still hustling for cases. They are not waiting for that phone call to come with full confidence that it will come. They are trying to be the first one to get in front of the former/current/prospective client on the new matter, and in that rush and competitive fervor they are making statements that could get them into trouble, like the ones Mr. Reines made here.

    As in-house counsel, I find the relentless pitching to be manifestly annoying. Whenever my company gets sued for alleged patent infringement, just about everyone still on the outside that I have ever worked with in the past comes out of the woodwork. And some of them make statements that come close to the line that Mr. Reines crossed.

    Oh well, even top doctors hustle for new patients these days. “Choose me for your brain surgery, not that other guy…”

    1. 14.1

      Yes, many large law firms have become so ruthlessly profit-oriented that if even major partners have “dry spells” as client-business-generating “rain-makers” [or, too much of their litigation settles early and cheaply], they can be under considerable pressure from their other partners, including objections to their very large “draws” from law firm income. “Turnover” and lawfirm instability has greatly increased. If patent litigation is now really declining, due to IPRs and the recent Sup. Ct. decisions, as some have projected, the pressure for more aggressive “rain-making” may increase in firms depending on the large billing opportunities for defending patent suits. Contingent fee profits for firms representing PAE patent plaintiffs is reportedly already substantially declining.

  14. 13

    David Lat’s commentary on this is worth a look.

    link to

    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?

    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.

    1. 13.1

      I would have little doubt that such may make a convincing case had he simply shared it with some buddies or even some clients. But the part about the case with millions of dollars … scandal any way you read it.

  15. 12

    “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.” Reines Ex. 38. ”

    Now that be some scandalous shizzle right thare. Too bad Rader enabled it with loosey goosey wording and effectively took a fall for that. I have to say I would ultimately see Rader as being in the clear here, except for the fact that it is against the rules apparently to even do something that might give the impression of impropriety. And of rule Rader’s loose language might be a real problem.

    ““[a]s you continue to consider us for your Federal Circuit needs, I thought the below email from Chief Judge Rader might be helpful.” ”

    Throw some scandal on top of scandal why don’t ya?

    “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.”

    Woo buddy.

  16. 11

    I am interested in thoughtful views of how this public reprimand will impact Mr. Reines’s career, which up until now has been distinguished. Assuming he gets to keep his law license (being disbarred doesn’t seem likely to me), will clients stop hiring him for Federal Circuit appeals? for district court cases? For better or worse, in this business perception matters a lot.

    1. 11.2

      No clue, but it reminded me of the famous statement attributed to Abraham Lincoln, while he was still practicing, to the effect that “I don’t mind what folks say about me in print, as long as they spell my name right.”

  17. 10

    I’m starting to find the calls for ending the Fed. Cir.’s exclusive jurisdiction over patent matters to be more compelling. Particularly given that some of the judges are clearly unqualified to be deciding patent issues. If we’re going to have that, let’s have more of it so disputes/disagreements/flat out fundamental misunderstandings of the law that would percolate and bubble up through multi-circuit jurisdiction would have a better chance of getting reviewed and corrected. I think the Supremes are more likely to take cases to resolve disputes between circuits than they are to take cases solely based on cert requests from one circuit. However, given the overwhelming level of technical ignorance and incompetence of the Supremes, and at least one’s self-proclaimed ignorance, I’m not so sure that’s a perfect solution either.

    1. 10.1

      I think since we have Google capture on the Fed. Cir. and big corp wants to end patents as we know it that ending the Fed. Cir. is the right thing to do.

      We can expect more Taranto’s and Hughes that are both hostile to patents and ignorant of patent law and science. It would be better to get a random circuit judge on another circuit that wasn’t bought by Google.

  18. 9

    Please comment on Mr. Reines repeated use of the term “patent lawyer” when being quoted in media and how it relates to 37 C.F.R. § 11.704 “Communication of fields of practice and specialization.” He does not appear on the OED’s list of registered practitioners. One example of such use (just google “patent lawyer” Reines for others):
    link to

    1. 9.1

      California has special ethics rules that seem to govern this:

      link to

      Identifying oneself as a patent attorney when such is not the case in any “communication” may violate multiple aspects of Rule 1-400.

      It appears that the reprimanded “friend” of Rader may have some answering to do on this as well.

    2. 9.2

      It’s the NYTimes who says he’s a “patent lawyer,” not him. It may surprise many to learn that many news reporters and likely most of the lay public don’t know or care about the distinction between patent litigators and patent prosecutors.

      1. 9.2.1

        I agree with you Ron that reporters don’t care about the distinction. It does appear, however, that Mr. Reines was quoted in some of the articles and likely had the opportunity to correct the journalist but did not.

    3. 9.3

      My understanding, Joe, is that you can say you “specialize in patent litigation” and so on. That’s pretty clear in most states I’m aware of. But, I’d hesitate using the term “patent attorney” without a clear indication from state law it’s okay. I don’t know California law on that narrow point. Advertising rules vary a bit by state, and California’s rules are, in many respects, unique.

      1. 9.3.1

        Why should this be left up to a State by State decision, given that patent law is a distinctly Federal question?



          Because the federal law and the federal rules promulgated by the federal agency pursuant to the federal law only concern themselves with practitioners.

          By definition, a non-registered attorney calling him/herself a “patent attorney” is not a practitioner governed by the federal law/rules.

          He or she is governed, however, by the state that granted him a license to practice law.

          Now, if you want the federal law and/or federal rules to start governing non-practioners, I suppose you could start up an internet petition or start lobbying your Congressone or some such.


            Sorry Mellow, but you need something more than the “not a practitioner governed” line if thought. Even the USPTO does not ascribe to that reasoning. (Prof. Hricik has written about this a couple of times on his side of the blog)


              Thanks. I scanned through several pages of David’s posts but didn’t see one relevant (may have missed it).

              If you could point me to one where someone not recognized by the Office was disciplined by OED, I’d be interested in learning about it.

              And I am aware of at least one case where a TM attorney got into hot water for trying to do or claiming to do patent work, but my understanding is that someone practicing before the PTO in TM cases is within the definition of practitioner.

                1. Thanks for all 3 (including the humorous one), which are interesting.

                  But although there’s a lot of discussion of the OED expanding its reach as against practitioners for non-PTO related infractions, unless I missed it, nothing seemed to go to the question of the USPTO being able to control the behavior of non-practitioners.

                  So, as mentioned above, I think it’s left firmly with the state bars to control.

                  If we want OED control over people lying when they say they’re a practitioner before the PTO, the current rules don’t seem to get us there.

      2. 9.3.2

        Strange. When I was coming up it was drilled into us that only two fields of lawyers could use “specialize” in any regard – patent and maritime law.

        The permitted phrasing for others was, e.g., “practice focused on” or “practicing primarily in” or even “practicing exclusively in” and the like.


          The ABA changed that. It used to be you could say “I limit my practice to patent law.” Now you can say, “I specialize in patent law.” You can’t say you’re certified unless it’s a state or national organization.

          Welcome to my world.

      3. 9.3.3

        P.S. DH – Where you teach, the rule does seem relatively flexible, as long as one tells the truth. Here’s an explanatory comment to your rule 7.4

        [2] A lawyer may truthfully communicate the fact that the lawyer is a specialist or is certified in a particular field of law by experience or as a result of having been certified as a “specialist” by successfully completing a particular program of legal specialization. An example of a proper use of the term would be “Certified as a Civil Trial Specialist by XYZ Institute” provided such was in fact the case, such statement would not be false or misleading and provided further that the Civil Trial Specialist program of XYZ Institute is a recognized and bona fide professional entity.

        I wonder how loosely or tightly reckoned is the phrase “by experience”?

  19. 8

    Well I’m from Europe so not used to US business and legal mores, but I have to say that I’m somewhat surprised that the Chief Justice could come to the idea of writing such a mail. Tell me, how many other such mails are written, day to day, by Randy and his colleagues on the bench. i mean, is this an egregious one-off or is it nothing at all out of the ordinary?

    If I were Frankie Howerd, I might even tell you all that, on reading the subject mail, my jaw dropped and my flabber was completely gasted.

    1. 8.1

      The letters from Rader serve at most to support the position of fact that Rader holds Reines in high esteem, that he believes Reines is very impressive lawyer, and that Rader holds him as a friend for life.

      Nothing in the letter from Rader suggests anything other than this. It is a great compliment. Rader did nothing wrong.

      Reines’ suggesting influence to help flip a $52,000,000 decision , however, is somewhat problematic.

      As for “perception” of the whole affair, perhaps we should be well to remember that those very persons of a character more likely to “play favorites” and be “influenced improperly” would be the very ones who would suspect such a thing in an innocent factual context: an honest letter from an exemplar of moral propriety and integrity… unfortunately for Rader and perception of his letter, I believe this is the case here.

      Whether or not such “suspicions” are projected on an “assumed” morally corrupt public, or whether the suspicions are the result of introspection of personal deficiency… who knows.

    2. 8.2

      I dunno…. I would think the rule should be that such relationships MUST be made public, so that anyone that comes before the Judge opposite such a friend can know to ask the Judge to recuse himself…

      I wonder why the rule is the opposite….. hmmmmm

      1. 8.2.1

        If it’s a particularly strong relationship, Les, the judge should recuse himself without being asked. A litigant shouldn’t have to investigate the personal relationships of the judge.


          Point is. If there is not problem with there being a relationship. Why is there a problem with public disclosure of the relationship?

          In this particular case, the email reads like an informal letter of recommendation. I see no implied ability for undue influence.

    3. 8.3

      “If I were Frankie Howerd, I might even tell you all that, on reading the subject mail, my jaw dropped and my flabber was completely gasted.”

      I can agree with that. But considering just how special this relationship seems to have been I’d say it’s a bit rare.

  20. 7

    So… the problem was NOT that he HAD a special relationship with the Judge.

    The problem was that the Judge wrote him a letter of recommendation and that he showed people said letter of recommendation.


  21. 6

    Correct result under the totality of the circumstances.

    Question, what if he had merely forwarded CJ Rader’s email (without all the additional self-promotional, self-laudatory commentary) to some current clients?

    Same result?

  22. 5

    Give me a break. The judge sends a congratulatory e-mail about two cases that weren’t in front of him and both people get sanctioned? Some of these professional rules need to be viewed in light of common sense and the spirit of the law.

  23. 4

    “The CAFC already has the perception of being too friendly with the patent bar …”

    Why anyone would doubt that this is in fact the case is surprising.

    1. 4.1

      Why anyone would see this as a problem is even more surprising. Hint – if the prosecutor is your son, that’s not a problem if the defense is your other son

      1. 4.1.1

        The courts are meant to on behalf of the public, not those who practice in front of them.


          sorry, missed a word. Meant to say,

          The courts are meant to *work on behalf of the public, not those who practice in front of them.

      2. 4.1.2

        Mr. Judge, the patent bar seems mainly interested feathering the nests of patent attorneys and patent firms. Without any check, this will lead to a constant expansion of patentable subject matter and to a constant lowering of the standards of patentability. I think this was pointed out by that discussion about the European patent system that was linked in one of the prior posts.

        In the last 20 to 30 years, we have seen the expansion of patentable subject matter to subject matter that is alive, to DNA, to business methods, to training cats and other such absurdities because the Federal Circuit was too friendly with the patent bar.

        The people deciding patent law have to decide cases without bias. Being too friendly with the patent bar and with patent attorneys is a problem.

    2. 4.2

      “too friendly” … ?

      As contrasted with the Supreme Court and its (historic and repeating) too hostile view of patents (and their d@mm ‘scriviners’)?

      Thanks, but being friendly to the vehicle that promoted innovation is better than being hostile.

  24. 3

    “[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.”

    “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).”

    The letters from Rader serve at most to support the position of fact that Rader holds Reines in high esteem, that he believes Reines is very impressive lawyer, and that Rader holds him as a friend for life.

    Nothing in the latter from Rader suggests anything other than this. It is a great compliment. Rader did nothing wrong.

    Reines’ suggesting influence to help flip a $52,000,000 decision , however, is somewhat problematic.

    As for “perception” of the whole affair, perhaps we should be well to remember that those very persons of a character more likely to “play favorites” and be “influenced improperly” would be the very ones who would suspect such a thing in an innocent factual context of an honest letter from an exemplar of moral propriety and integrity… unfortunately for Rader I believe this is the case here.

    Whether or not such “suspicions” are projected on an “assumed” morally corrupt public, or whether the suspicions are the result of introspection of personal deficiency… who knows.

  25. 1


    Respectfully, even if you perceived Judge Rader’s actions to be guided only by the merits of the cases and his general email demeanor to “discount” some of this, that is largely irrelevant. What matters is how the public would perceive the acts, and whether the public can have faith in the judiciary to not play favorites.

    The CAFC already has the perception of being too friendly with the patent bar (see, e.g., here), whether deserved or not. This sort of activity does nothing to dispel that perception, and can only lead to reinforce calls to end the CAFC’s exclusive jurisdiction over patent appeals. Perhaps that will, in the end, be Judge Rader’s legacy.

    1. 1.1

      PA, that link to the discussion of a central patent court in Europe was interesting. They wish to learn from experience, but they also keenly observe human nature. When patent courts compete for patent business, they will tend to favor patentees to get cases filed in their courts. This, it was observed, would create a downward spiral in the standards for patentability.

      This reminds me of what seemingly happened in the United States after the creation of the declaratory judgment act. That spawned a race between patentees and infringers to file in specific circuits depending on how they were perceived as being patent friendly or patent unfriendly. That lead to a perceived downward spiral in the value of patents. Today, we have similar forum shopping, but by District Court, particularly where districts want to be pro-patent in order that patent cases be filed in their courts.

      Also, the structure of a single patent court does not allow for the proper development of patent law because a panel decision is precedent, binding on the whole court. When one has multiple circuits, the ruling by one circuit is not binding on other circuits. A second circuit can point out why the first circuit was in error, if they disagree, and the disagreement can be resolved by the Supreme Court with a good airing of the issues on both sides by the respective circuits. A single court does not allow this, and I think we have seen that the Federal Circuit makes a lot of mistakes that have to be fixed by the Supreme Court. I think they make mistakes in part because panel decisions are controlling, and, because they are controlling, panels tend to write broadly well beyond the facts of a particular case.

      But I do not see how any patent court in the end is going to be anything else but pro-patent, friendly with the patent bar, and prone to making mistakes because of the lack of freedom of other panels to come to rulings inconsistent with the decisions of prior panels. The result of the creation of the Federal Circuit has not been good for patent law as witnessed by the necessity of so many (unanimous) reversals by the Supreme Court, although it certainly has been good for patent attorneys.

      1. 1.1.1

        Ned I don’t think it is inevitable that patents courts end up favouring patent owners. Take for example the specialist patent court in London. It is much respected within the circle of users but nevertheless widely perceived outside that circle as being anti-patent. that might be because its Services are employed by the generics companies,wanting to use its forensic fact-finding procedures to bust a pharma patent of dubious validity.

        Traditionally its judges come from the ranks of “patent barristers”, advocates who have represented litigants (owners and accused infringers) before that court for a couple of decades (so they are well familiar with all the games litigators play) before they step up to the bench to start to write the law themselves.

        Your thoughts?


          MaxDrei, your point about experienced barristers is probably why the court in the UK is balanced. But if that practice ever ends, the result will be the same as in the US.

          But having a single court does no solve the other problem of panel decisions being binding on the whole court. I tend to like the way the EPO does it, with various panels engaging in debate, where the debate is finally determined by an enlarged panel. This was the model in the US with various circuits that could debate with each other, until the Supreme Court decided who was right.


            Ned are you following the anguished debate in Europe, about whether Europe’s Supreme Court can take over from the EPO the ultimate authority for interpreting the law of the European Patent Convention? In short, many fear that the Court of Justice of the European Communities will inevitably f— up the law of patent validity as badly as it has already messed up trademark law.

            Sometimes good historical outcomes happen by accident. It was an accident, back in 1973, that left the EPO as ultimate decider of the substantive law of patent validity in Europe.

            Of course, the Boards of Appeal at the EPO are peopled exclusively by specialist patent law experts, and it is tension between different ones of those Boards, ultimately resolved by the “Enlarged Board of Appeal” that keeps EPO law on the optimal track.


              Max, I am not sure, but enforcement of patents in Europe is still local, by state. Are you going to allow appeals from the local courts to the European Supreme Court so that European patent law is uniform?


                Ned, thanks. The European Patent System of today is not an organ of the EU. The EU has only 27 Member States, but the EPO has 38 (and counting). An EPO grant certificate should be seen as a “bundle” of national patent rights, to be litigated country by country.

                But the upcoming European “Unitary Patent” is an EU entity.

                How shall such unitary patents be litigated?

                Local courts are prescribed, and a single court of appeal. The issue is whether there shall be a third instance, namely the CJEU (as there is with EU TM and Design Registrations).

                One would think that a single specialist EU court for patent appeals is enough to ensure uniformity. But does the buck stopping right there conform to the EU Constitution (the Treaty of Rome)? The Jury is still out, on that question.

                1. Thanks Max for the information.

                  It seems mighty hard to form a nation from a large plurality of sovereign states – even if they all share the same language and customs as in the case of the United States.

                  Undoubtedly a pan- European patent would be quite valuable. I presume that the agency for examining and issuing such a patent will be the EPO. Is this correct?

                2. Ned in reply to your most recent, I would suggest that, effectively, there has been a “pan-European” patent since 1978, when all those nations in Europe conformed to the EPC their respective national laws of claim construction and validity. In Europe today, specifically in those areas of law, and more by luck than judgement, we have, thank goodness, a high degree of legal certainty and conformity.

                  Cases where the decisive issue is whether a particular act is an infringing act are (I would say) relatively infrequent (given an intelligently drafted patent statute).

                  And yes, the granting authority is the EPO. The plans for a European Unitary Patent do not include yet another granting body as well as national Patent Offices and the EPO.

                  Interesting at the moment is whether the Macchiavellian French politician who is currently President of the EPO is scheming to write the EPO out of doing patent jurisprudence, gifting that work to the envisaged European patent court to be based, surprise, surprise, in Paris. Is that something you would welcome, I wonder.

                  Such shambolic squabbles are typical Europe, you might well think. I of course (pace Francis Urquhart) couldn’t possibly comment.

      2. 1.1.2

        Ned, I agree with many of your points, and jurists and scholars alike are also commenting on the same issues you point out.

        It cannot be a good sign when the Chief Judge of a fellow circuit publicly calls for the end of exclusive jurisdiction of the Federal Circuit for the reasons you point out.

        The Federal Circuit is an experiment that was worth trying. But it is now time to evaluate whether the benefits of a single appellate court outweigh the harms.


            Which of course, cannot be changed without a constitutional amendment.

            In any event, having a single, higher level appellate court be a single court is different than having the first appellate court be a single court. By having many appellate courts, a diversity of viewpoints is cultivated before a higher court steps in to resolve any differences.

            It also helps prevent the sort of judicial capture that has led to the order we saw today.


              Actually PatentAssignee, removing the Supreme Court from jurisdiction of patent appeal cases would NOT take a constitutional amendment and IS within the authority of Congress.


                The problem with that is the Fed. Cir. is no longer qualified to be the patent court. Judges like Taranto and Hughes illustrate the problem. People are being appointed based on their virulent hostility to patents and their ignorance of science and patent law.

                The shills Taranto and Hughes illustrate why we can’t have a patent court. Big corp can then target their influence to a particular area of law. We now have Google judges.

                1. Shameful that Obama would appoint judges to the patent court that are ignorant of science—and have never shown any interest in science or technology their entire lives.

                2. The point NWPA is that whether or not there is any ‘judicial capture,’ the presence or absence of such can be indicated at ANY level of appellate review – including the top level.

                  One person’s answer of scrutinizing the CAFC level but not the Supreme level is thus a flawed view.

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