I’ve decided to set the stage and let you all just read the actual documents. In response to the show cause order, Reines filed a massive response, including declarations from six experts, all of whom said there was no cause to reprimand Reines. They’re worth a read, since these folks (mostly) deal with discipline. Yes, some experts will say anything, but in my (biased?) opinion these folks nail it. (I’ve laid out below the procedural problems with this approach.)
Once you’ve read through the brief and the exhibits (link at the end), think before you comment:
First, don’t conflate Chief Judge Rader’s admitted mistake — he’s already apologized to bench and bar for the email he sent to Reines — with Reines’ actions in forwarding the email to his family and some former, current, and apparently a few potential future clients. (All of whom were sophisticated in-house counsel, apart from his family. I hope it is not sanctionable to send a nice note to your family.)
Second, in your comments, take into account that the court was required to find facts — something it’s not designed to do — by clear and convincing evidence. (That’s what its disciplinary rules require). Related to that, recognize that, ostensibly at least, the en banc court’s fact-findings, made without any opportunity to appeal, “should” result in Reines being subject to discipline by the California bar. By that I mean: normally, if a court imposes discipline there’s a high probability a state will follow suit (discipline; not sanctions, etc.). In that regard, also realize that Reines’ counsel offered to provide live testimony but the Court said that because he didn’t formally require a hearing, it was not providing one… even though much of its decision turns on what it concluded Reines’ intent was.
Third, read the show-cause order itself. I won’t go into details, but it makes some allegations that required about five words in the responsive brief to show were baseless.
Fourth, and most importantly, recognize that, the key factual finding by the court (at least to me) is that Reines “stated” that his stature with the CAFC helped flip a judgment, and that is flatly wrong. Here is what the court wrote:
It [the email in Ex. 38] 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.
Thus, the court “found” that Reines had forwarded the email and stated that his stature at the CAFC had helped him flip a verdict.
This is factually wrong. It just is. Not my opinion; simply facts. But that finding is about the only thing I think the court can hang its hat on in finding an ethics violation. In that regard, note that when I had first written in the earlier post that the court got this right, I’d focused on this $52m “finding,” too. T
But there is no evidence to support the finding, let alone clear and convincing evidence.
The court did not quote email exhibit 38. Here is the material text of Exhibit 38, sent to an in-house lawyer (apparently a friend or former client?) who was dealing with post-trial issues in district court in California, and offering to help in the district court post-trial efforts to flip that verdict:
Paul, I saw the unfortunate verdict in ND Cal in the Power Integrations case. I call to offer assistance in two ways. I can help in the district court. No one knows this court better or has a better relationship with the bench. I have chaired the ND Cal Patent Rules committee for many years and am viewed as an authority on all-things-patent by this bench. You will have maximum credibility. Second, I am a leading Federal Circuit advocate. Just yesterday Chief Judge Rader sent me an email reporting how impressed the Federal Circuit judges were in appeals I argued Tuesday. In one of those cases I helped flip a $52 million verdict. I would love to help you do the same. Yesterday’s email [from Chief Judge Rader] is below. Please keep it to Fairchild. I have served the Federal Circuit as Chair of its Advisory Council for many years. That obviously speaks to my stature at that court.
The fact is that Reines had “flipped” a verdict in a district court. The word “stature” appears, but (a) he did not “state” that his stature resulted in the flip and (b) , if you argue a case at the CAFC and the result is reversal — flipping a verdict — you will not know that you “flipped” the case within two days. You might get a rule 36 affirmance, but you won’t flip a case. So, it’s not even a fair stretch.it makes no sense — and it also relies on his statement that he flipped a decision in the district court to support the en banc “fact finding” that he said his stature helped him flip a verdict at the CAFC. Put the other way, the fact that he said he had flipped a decision in a district court was portrayed by the Court as a statement that his stature with the CAFC helped him flip a case at the CAFC. This is factually unsupported by the record, even by wild unreasonable inferences against him.
I’m not going to comment further, so you’re on your own in the comments. But, here is Reines’ response. (It’s so massive it won’t fit on patentlyo…). To be complete, he filed a short supplemental letter, too, but it’s not very important to the outcome.
And, yes, I am a friend of Judge Rader. Always will be, I hope.
Will the Supreme Court practitioners featured in this article be subject to sanctions if they share it with current or potential clients?
link to reuters.com
Perhaps the take away from this is not to send promotional materials to clients that speak of one’s influence with a particular court even if that influence is only because one is doing a good job, which was definitely not the case here.
This quote is especially damning: “I have served the Federal Circuit as Chair of its Advisory Council for many years. That obviously speaks to my stature at that court.”
If this is not over and the Cal Bar takes this up, perhaps we will eventually hear from the California Supreme Court on this issue.
This attorney discipline case was never about Mr. Reines, that’s where I think you’re coming at it incorrectly. This was entirely about Judge Rader and his actions, and about the Court needing to act on something that apparently was well-known among the patent bar by the time they made a decision.
Does the email from Judge Rader to Mr. Reines raise an appearance of impropriety? Absolutely. That’s why the court had to act. The court gave Mr. Reines a slap on the wrist, but made the record clear about what Judge Rader did and the Judges made clear that they do not condone Judge Rader’s behavior.
Judge Rader did something very wrong that made the public and the bar practicing before his court question his impartiality and his ability to be a judge. He swiftly resigned, and his reputation has rightfully taken a hit. The Federal Circuit had to make clear that Judge Rader’s behavior is atypical of the Court.
Ok, where to begin. I suppose I’ll just address your comments in the order David presents them.
(1) Although I agree that we should not conflate Rader’s admittedly inappropriate sending of the email with Reines forwarding it. However, what should not be forgotten is (a) the overly friendly nature of the email (e.g., “your friend for life”) as evidence of an improper relationship between the two; and more importantly, (b) that neither Reines nor Rader ever disclosed the extent of their relationship (or even this email) to others and had someone NOT brought it to the Court’s attention, they would have continued on despite the inappropriateness.
(2) David makes much about the inability to appeal. But (a) why would Reines not have the ability to appeal? Could he not ask for rehearing? Could he not appeal to the Supreme Court? David does not address this matters; and (b) note that the Supreme Court itself does not appear to provide any mechanism for appealing any sanction in that court. Why does the Federal Circuit (assuming it doesn’t provide a right to appeal) have to give more rights than the Supreme Court itself?
(3) I can’t address this point because David doesn’t actually make a substantive argument. It’s a “it’s there but I won’t tell you what it is!!”. Rules of procedure: argument waived. (ok, that was a little snarky, but in seriousness, it’s hard to see David’s point when he won’t show it to us)
(4) This appears to be the most important point to David and suffers from the biggest flaw. His argument appears to be “because the email could not have been true, there can be no evidence of an intention to try to show an ability to influence the court based on a special relationship with its then chief judge”. This argument is flawed.
Assume I send the following email to people: “Judge *** and I are great friends. We often go on vacation to Thailand together and our spouses meet regularly. I know the Judge values my opinions and friendship very highly. If you hire me, I’ll be sure to put in a good word for your upcoming case.” Suppose everyone who practices at the court knows that (a) Judge *** has no friends; (b) never goes on vacation abroad because they have a deathly fear of flying; and (c) has no spouse, so my email couldn’t possibly be true. But even then, did I not just “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”? That is, it does not matter that the email is not true. I still could have violated the ethical rules.
My point is, perhaps to a practitioner at the court, my email would be brushed aside. But what about a transactional lawyer who does no work at the court and is faced with their first patent case so knows nothing of the Federal Circuit? Like much intent evidence, the facts argued are irrelevant, what matters is the impression they were intended to give.
David assumes everyone would parse the email, investigate its veracity, and dismiss it. David also assumes familiarity by all the recipients of the email of the rules of procedure (apparently because they were sophisticated in house counsel). But being sophisticated in house counsel is not necessary nor sufficient to show proficiency with rules of civil procedure or diligence in investigating every email received (even if just a spam email from a lawyer trying to drum up business).
On my first reading of the email, I read it just as the Federal Circuit did. That is the clearest, easiest way to read it, and does indeed go to the conclusion that Reines was suggesting an inappropriate ability to influence decisions. Why anyone would assume a reader would ponder it for weeks to discover its “truth” (as David did) seems the real “wild unreasonable inference.”
I’d pulled the document from PACER before this post.
1. It’s difficult not to conflate the two things you ask us not to. Rader sent the e-mail and encouraged Reines to forward it. Reines forwarded it. Much of the problem is the content of the e-mail, not just Reines’ comments along with the e-mail. It’s hard to imagine why Rader thought it was ok to e-mail counsel in a pending case shortly after argument to praise his performance, disparage his opponent’s performance, and encourage him to share the e-mail. Reines’ main error was trusting Rader’s judgment. I’m not sure what the fact that Rader’s “already apologized” has to do with anything.
2. Anyone who appears repeatedly before the same court develops a reputation with the judges–for credibility and competence, or for the opposite. This is not a secret, nor is it an ethical problem, as far as I know. Former Chief Judge Breitel of the New York Court of Appeals said this:
[P]erhaps the most valuable thing the lawyer brings into the courtroom when he is an advocate is his reputation. His reputation for candor and soundness is worth three points in his brief and a marvelous opening for his oral argument. If his reputation is bad, I don‘t care what he says or how he says it—he is climbing a glass mountain in shoes covered with oil.
See this link at fn 34: link to lawreview.richmond.edu This isn’t to say that judges give special treatment to lawyers with good reputations. But they have finite amounts of time, and use instincts as well as logic when deciding cases, and reputation helps a bit with the instinct side. Those lawyers must continue to earn their reputations, and good reputations take a long time to build and a short time to lose. But the reputation is in the judge’s mind when listening to an argument and reading briefs, and if it’s good it helps and if it’s bad it hurts.
Evidence that a lawyer actually has this sort of good reputation with a court is very rare. See link to sociallyawkwardlaw.com And sharing it with clients shouldn’t be regarded as an ethical failing. The order’s statement about “blink[ing] reality” seems to deny this.
3. A lawyer telling clients that he has “flipped” verdicts in the past and hopes to do the same in the future is describing his job. A client with a substantial judgment against it hires a lawyer to try (within the bounds of ethics, of course) to get that judgment reduced or “flipped.” To presume, from the word “flip,” that the flipping will happen through unethical schmoozing rather than quality advocacy requires more evidence than is in this file.
4. I doubt that Rader had any impure intentions, but the court seems to be embarrassed by this incident, and is taking it out on someone it still has the power to punish. The en banc posture of the order, and the contents of the order have at least an undertone of lashing out in anger, particularly this line: “Finally, the fact that Mr. Reines circulated the email extensively and that it became a matter of general public knowledge warrants a public response by this court.” Poor judgment by Rader, poor judgment by Reines… and poor judgment by the court in response. This incident doesn’t reflect well on anybody.
On another note, that neither Reines nor Rader every disclosed this relationship to others is the real issue to me. No one was made aware of it until someone spilled the beans with the email, and thus the real people who were denied due process are those that would have considered seeking recusal had they known of the relationship before hand. The true issue lies in the end of the Federal Circuit’s opinion that notes that there is more to this story.
If you don’t think that a relationship between a Judge and a practitioner can be important to know about, at least one court disagrees with you. (See here, note 16)
Finally, David, I hope you did read the material closely, and noted how Reines’ description of his relationship with Rader was very specific. The following, from Reines declaration “We are not golf partners or softball teammates. We are not family friends. We live on opposite sides of the country”, which pretty much is all that he says about the relationship, leaves so much open. For example, that statement could be true, and so could the following: “We are hunting partners and hockey teammates. We are close, personal friends. We travel to meet each other and vacation in Texas for weekends because we live on opposite sides of the country”. I am with the Federal Circuit when it said, “Certain record facts suggest that the relationship was closer than Mr. Reines’s submissions indicate, suggesting that Mr. Reines did not fully describe the nature and extent of the relationship.”
I meant to respond to my own comment above. Apologies for confusion.
I promised not to reply but.. you flip a verdict in the district court by doing exactly what he had done — jmol. He didn’t flip anything on appeal. He couldn’t have. You can’t even remotely read it that way if you understand (a) civil procedure and (b) rule 36.
You’re reading in familiarity with facts and civil procedure that weren’t stated in the letter. You assume the reader is more likely to understand that there was a jmol (a rare event) than a reversal on appeal (a much more common event) only because there was a reference to “Tuesday.” Perhaps the reader was familiar with the cases, perhaps they had previous conversations and it was fair for Mr. Reines to assume that the reader would understand his abbreviated references. But I don’t think it’s a stretch at all to interpret this as Mr. Reines suggesting that he has influence with the court, particularly given his high level of skill at advocacy.
I have been pitched by Mr. Reines (and he was hired). He indeed used his close relationship with the Federal Circuit as part of his pitch. In my opinion he didn’t cross the line in our conversation, but then I also know where the line is and gave him the benefit of the doubt about what he was inferring. The Court wasn’t as willing to, as is their prerogative.
On reflection, I originally read this email as Mr. Reines suggesting that J. Rader told him privately, based on his conversation with the other judges at lunch, that he had been successful in one of his appeals. Saying “strictly social” (wink, wink, not being improper here), conveying the information that the judges were discussing the cases and the advocacy, and that Mr. Reines and J. Rader were “friends for life,” all suggest one friend might have confidentially shared something that he shouldn’t have, but neither could say it expressly. If the court had actually discussed the merits of the case at lunch, then the inference would be even stronger for them.
You’re concerned with the actual facts of the “flipping” case, but they don’t matter. What matters is how Mr. Reines characterized a situation to his client and, as I read the email, he most assuredly conveyed the information that he can influence the court. You expect the reader of the email to know that the “flipping” comment couldn’t be a suggestion that he won on appeal because of the timing, but how does one “flip” a verdict at the district court?
The sentence structure is (1) I was praised for a hearing at the CAFC; (2) the case heard was flipped; (3) I can do the same for you. I suppose you would say that the email was just awkwardly worded and Mr. Reines inadvertently made the suggestion of a “flip” of a CFAC decision, but Mr. Reines is a highly skilled writer and the email suggests that because that’s exactly what he wanted it to suggest. He was hoping that it would be parsed the way you have done it, no individual statement is inaccurate, but together they intentionally suggest influence with the court, which is what the CAFC concluded.
I have not dived through the material yet, but I think that your “facts don’t matter ” view fails of its own weight.
That is not to say that your view of the perception of the transactions is off – your view may not be off.
But facts do matter. Skipping over process steps does matter.
The legal question was what impression Mr. Reines’ writing gave, not whether Mr. Reines’ statement was accurate. Any fact that isn’t conveyed to or known by the reader can’t possibly change their understanding of the writing.
“But facts do matter. Skipping over process steps does matter.”
Indeed. Particularly, under these circumstances. The man’s career is in all likelihood finished (I’m talking about Ed Reines here). After the public beat down that the CAFC gave him, no client in his right mind would ever think about hiring Reines again for appellate work. As a client, I would also be leery of even hiring him for trial work because I’d worry that any case going up on appeal with Reines as the lead trial counsel (even if he wasn’t handling the appeal) would get some sort of “special” scrutiny from the CAFC panel.
And for the record, I’m not taking sides in this debate. I don’t know the man (other than through his reputation) and I have a lot of respect for former Chief Judge Rader. I’m just saying that given the impact the CAFC’s order will have on Reines career, making sure that due process and all procedures were followed is very important.
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