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.