Distribution of Email Implying Special Influence Warrants Public Reprimand

In re Edward R. Reines, __ F.3d __ (Fed. Cir. Nov. 5 2014) (per curiam) (en banc) (No. 2014-MA004) (3 of 5 stars)

Federal Circuit issues public reprimand to attorney who received, then widely distributed, a laudatory email from then-Chief Judge Rader, upon concluding that such conduct violates Model Rule of Professional Conduct 8.4(e).

After receiving a private email from then-Chief Judge Rader praising the attorney's performance at two oral arguments and referring to their special friendship, the attorney circulated the email to existing and prospective clients, with accompanying comments to solicit their business. The Federal Circuit ordered the attorney to show cause as to why his actions did not violate Rule 8.4(e), which deems professional misconduct actions that imply an ability to influence a judge improperly because of a special relationship.The attorney argued that forwarding the email did not imply any improper influence and that discipline would be unconstitutional under the First Amendment.

The Federal Circuit first noted its authority to discipline the attorney under FRAP 46, which subjects an attorney to suspension or disbarment for "conduct unbecoming a member of the court's bar." Slip Op. at 5. The Federal Circuit found that the attorney's conduct violated the rule because: 1) the email describes a special relationship between the attorney and then-Chief Judge Rader; 2) the email's recipients viewed it as suggesting that the attorney's special relationship extended to other judges; 3) the comments to the email emphasized the attorney's special relationship rather than his advocacy skills; 4) the comments made clear that the attorney intended to influence the recipients' decisions about retaining counsel; and 5) the email and accompanying comments suggested that the Federal Circuit would look favorably on the recipients' decision to hire the attorney. The Federal Circuit rejected the attorney's First Amendment argument, noting that an attorney's right to communicate with clients and prospective clients is "not unfettered" and "a strong interest exists in protecting the integrity of the legal profession and in protecting the public from misleading commercial speech by attorneys." Id. at 12. The Federal Circuit concluded that the conduct warranted a public reprimand, after considering mitigating factors (including the attorney's reputation in the legal community and service on the Federal Circuit Advisory Council) and aggravating factors (including the attorney's attempt to downplay his relationship with then-Chief Judge Rader and the now-public nature of the email at issue).

The court separately noted a concern relating to the attorney's exchange of items of value with then-Chief Judge Rader, including concert tickets and backstage access, while the attorney had cases pending before the Federal Circuit. The court referred that matter to the California bar.