Federal Circuit Ethics Opinion: Unnamed Firm Negligent in Monitoring Conflicts

by Dennis Crouch

Federal Circuit R. 50 states that:

No employee of the court shall engage in the practice of law. No former employee of the court shall participate or assist, by way of representation, consultation, or otherwise, in any case pending in the court during the period of employment.

In a new order captioned In re Violation of Rule 50, Docket No. 2018-9001 (Fed. Cir. Sept 27, 2018), the Federal Circuit has rebuked an unnamed former law clerk and her law firm for violation of the rule.

The basic setup: When the clerk left the Federal Circuit, she handed over a list of no-no cases to her new law firm. (“No-no cases” are those that were pending during the clerk’s time at the Federal Circuit.)  Several years later, the firm stepped-in as new counsel to one of the no-no cases and the former clerk appeared as a lawyer in the lawsuit (though not lead counsel).  Some unidentified time later, the clerk realized the violation and immediately withdrew from the case.  The clerk and firm then notified the Federal Circuit of the breach — noting that the clerk never saw any briefs, discussed the case, or heard any discussion of the case during her time at the Federal Circuit.

In its decision here, the court noted that R. 50 “must be strictly followed” and that the facts as explained are “proof of the firm’s negligence.”  Still, the court decided not to impose discipline since this was a first offence for the clerk and firm and no harm was shown. I expect that it would be personally difficult for the court to actually impose discipline on its former clerks absent egregious factors.  However, the court concludes with a general warning:

We emphasize that discipline may be imposed on similar Rule 50 violations in the future.

The decision also cites a second R.50 violation decision from earlier in 2018. In re Violation of R. 50, 712 Fed. Appx. 1005 (Fed. Cir. Feb. 15, 2018)(unpublished).  In that proceeding, the court explained:

Soon after joining the firm, the former clerk was approached by a partner to review, and provide feedback on, a draft opening brief to be submitted in consolidated appeals that were (and remain) pending before this court. It appears that neither the former clerk, nor the partner, nor any other employee of the firm checked to see whether the appeals had been before this court during the former clerk’s employment. The former clerk accepted the assignment and billed 9.7 hours the next day.

After the brief was filed, it occurred to the former clerk that “it was possible that the appeals had been docketed before [his] clerkship ended.” After checking his Appeals Pending List and discovering the violation, the former clerk was immediately removed from the case, and the law firm promptly informed the opposing party and this court of the Rule 50 violation. The opposing party did not object to the filing of the brief in question or the law firm’s continued representation during the appeals.

In that case – like this one – the court did not impose discipline, but acted to “remind the former clerk and the firm that the must be more vigilant.”  In that case, the court particularly stated that the burden of compliance is held by both the former clerk and the law firm.