A prominent patent attorney in California forwarded a congratulatory email he received from a judge of the U.S. Court of Appeals for the Federal Circuit to more than seventy individuals, over half of which were clients and prospective clients. Praise
Along with the forwarded email, wherein the then-Chief Judge referred to the attorney as “my friend” and said, “[i]n sum, I was really proud to be your friend today,” the attorney included a message soliciting business. The attorney urged recipients to keep his law firm in mind when considering the firm for their Federal Circuit needs.
The Federal Circuit responded classifying the attorney’s action as “conduct unbecoming a member of the bar,” which is prohibited by Rule 46 of the Federal Rules of Appellate Procedure. In response, the attorney argued the First Amendment protected his conduct.
In an en banc ruling on November 5th, the court contended that the attorney should have exercised better discretion by not disseminating the judge’s email because the email, in conjunction with the attorney’s message, implied “a special relationship with then-Chief Judge Rader and the Federal Circuit.”
The en banc panel held that the attorney was in violation of Federal Rule 46, as well as Rule 8.4(e) of the Model Rules, which states it is professional misconduct for an attorney to “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.”
The attorney was publically reprimanded, and the panel stated that it plans to bring the matter to the California State Bar’s attention for its consideration on a separate potential disciplinary issue involving “the exchange of items of value between [the attorney] and then-Chief Judge Rader.”
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