In Re Reines

  United States Court of Appeals
      for the Federal Circuit
                  ______________________

              IN RE EDWARD R. REINES,
                      Respondent.
                 ______________________

                     14-MA004 (14-4)
                  ______________________

  Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O'MALLEY, REYNA, WALLACH, TARANTO, CHEN, and
              HUGHES Circuit Judges.
PER CURIAM.
                        ORDER
     Pursuant to Federal Rule of Appellate Procedure 46,
it is hereby ordered, adjudged, and decreed that Edward
R. Reines, a member of the bar of this court, is publicly
reprimanded for his misconduct in disseminating an
email to clients and prospective clients that he received
from then-Chief Judge Rader.
                              I
    Respondent is a member of the bar of this court, hav-
ing been admitted to practice on October 1, 1993. At that
time, he took an oath to “comport [himself] as an attorney
and counselor of this court, uprightly and in accordance
with the law . . . .” Respondent has appeared frequently
before this court, and has served as the chair of the court’s
Advisory Council.
   This matter had its genesis in oral argument held on
March 4, 2014, in two companion cases: Promega Corp. v.
2                                             IN RE REINES



Life Technologies Corp., 2013-1011 and Promega Corp. v.
Applied Biosystems, LLC, 2013-1454. Respondent repre-
sented the appellants in both cases on appeal, and pre-
sented the oral arguments.
   The next day, on March 5, 2014, at 3:24 p.m. EST,
then-Chief Judge Rader sent a private email to the re-
spondent. 1 In the email, then-Chief Judge Rader, who was



    1 The email is included as Attachment A to this order.
The subject line of the email was “Congratulations.” The
text of the email is as follows:
    Ed,
        On Wednesday, as you know, the judges meet
    for a strictly social lunch. We usually discuss poli-
    tics and pay raises. Today, in the midst of the
    general banter, one of my female colleagues inter-
    rupted and addressed herself to me. She said that
    she was vastly impressed with the advocacy of
    “my friend, Ed.” She said that you had handled
    two very complex cases, back to back. In one case,
    you were opposed by Seth Waxman. She said Seth
    had a whole battery of assistants passing him
    notes and keeping him on track. You were alone
    and IMPRESSIVE in every way. In both cases,
    you knew the record cold and handled every ques-
    tion with confidence and grace. She said that she
    was really impressed with your performance. Two
    of my other colleagues immediately echoed her en-
    thusiasm over your performance.
        I, of course, pointed out that I had taught you
    everything you know in our recent class at Berke-
    ley together . . . NOT! I added the little enhance-
    ment that you can do the same thing with almost
IN RE REINES                                             3



not a member of either panel, stated that judges on the
Promega panels at a judges-only lunch had praised re-
spondent’s performance at the oral arguments. The email
referred to a special friendship between Mr. Reines and
then-Chief Judge Rader. In the email, then-Chief Judge
Rader referred to Mr. Reines as “my friend” and said, “[i]n
sum, I was really proud to be your friend today!” Then-
Chief Judge Rader closed with “[y]our friend for life.” The
email also added an effusive endorsement by then-Chief
Judge Rader himself and contained an invitation to share
the email with others.
    Respondent then circulated the email to no fewer than
35 existing and prospective clients, with accompanying
comments soliciting their business based on the email.
The majority of the more than 70 individuals who re-
ceived it were lawyers, but some were non-lawyers. Re-
spondent told some recipients that this type of feedback



   any topic of policy: mastering the facts and law
   without the slightest hesitation or pause!
       In sum, I was really proud to be your friend
   today! You bring great credit on yourself and all
   associated with you!
       And actually I not only do not mind, but en-
   courage you to let others see this message.
       Your friend for life, rrr
We note that the email contained certain inaccuracies, as
then-Chief Judge Rader has himself noted. Letter from
then-Chief Judge Randall Rader to Federal Circuit Judg-
es (May 23, 2014) (“The email reported, with certain
inaccuracies, a conversation I had with another member
of the court . . . .”).
4                                            IN RE REINES



was “unusual” or “quite unusual.” Reines Ex. 4; Ex. 8; Ex.
44; Ex. 45.
    On June 5, 2014, we ordered that respondent show
cause as to why his actions associated with the email did
not warrant discipline by this court, inter alia, because
they violated Rule 8.4(e) of the American Bar Associa-
tion’s Model Rules of Professional Conduct. The Show
Cause order is included as Attachment B to this order.
Model Rule 8.4(e) provides that it is professional miscon-
duct for a lawyer 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.” Model Rules of Prof’l Conduct R.
8.4(e) (2014).
    Mr. Reines responded to the show cause order on July
7, 2014. Respondent acknowledged forwarding the email
to clients and potential clients. Mr. Reines argued, inter
alia, that he did not imply any improper influence under
Model Rule of Professional Conduct 8.4(e); according to
Mr. Reines, he forwarded the email “because information
about [his] skill at oral advocacy is an appropriate consid-
eration in the selection of counsel.” Decl. of Edward R.
Reines ¶ 19. Respondent also argued that ordering disci-
pline would be unconstitutional under the First Amend-
ment. Mr. Reines included statements of experts in legal
ethics to support his arguments. Mr. Reines did not
request a hearing in this matter pursuant to Federal Rule
of Appellate Procedure 46(c) and Federal Circuit Attorney
Discipline Rule 5(b).
   Because of the importance of this matter, we deter-
mined to consider it en banc.
                             II
    It is initially important to review the source of the
court’s authority. Federal Rule of Appellate Procedure 46
provides that a member of the bar of a court of appeals is
IN RE REINES                                               5



subject to suspension or disbarment if he or she “is guilty
of conduct unbecoming a member of the court’s bar.” Fed.
R. App. P. 46(b)(1)(B). Similarly, any attorney who prac-
tices before the court may be subject to discipline “for
conduct unbecoming a member of the bar.” Id. 46(c). The
Supreme Court has interpreted Rule 46 to “require[]
members of the bar to conduct themselves in a manner
compatible with the role of courts in the administration of
justice.” In re Snyder, 472 U.S. 634, 644–45 (1985). This
court and other circuits have imposed discipline under
Federal Rule of Appellate Procedure 46. 2
    In determining whether an attorney’s conduct consti-
tutes “conduct unbecoming a member of the bar” under
Rule 46, courts are to be guided “by case law, applicable
court rules, and ‘the lore of the profession,’ as embodied in
codes of professional conduct.” Id. at 645. These sources of
guidance include the code of professional conduct promul-
gated by the attorney’s home state bar. While state ethics
rules “do[] not by [their] own terms apply to sanctions in
the federal courts,” a federal court “is entitled to rely on
the attorney’s knowledge of the state code of professional
conduct . . . .” Id. at 645 n.6. Here, respondent is a mem-
ber of the State Bar of California. We have also adopted
Federal Circuit Attorney Discipline Rules, establishing
procedures for attorney discipline, but not elaborating on
the substantive standard for imposing discipline.
    We conclude that with respect to the email dissemina-
tion we should look to the Model Rules of Professional
Conduct rather than to the rules of any individual state.
We note that other circuits have imposed discipline by


    2See, e.g., In re Violation of Rule 28(D), 635 F.3d
1352, 1360–61 (Fed. Cir. 2011); In re Girardi, 611 F.3d
1027, 1035 (9th Cir. 2010); In re Mann, 311 F.3d 788,
790–91 (7th Cir. 2002).
6                                            IN RE REINES



referring to the Model Rules of Professional Conduct. 3 We
think that Model Rule 8.4(e) sets forth the relevant
standard.
                            III
     We consider whether disseminating the email violated
Model Rule of Professional Conduct 8.4(e). Rule 8.4(e)
states that “[i]t is professional misconduct for a lawyer
to . . . 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.” Model Rules of Prof’l Conduct R. 8.4(e) (2014 ed.). “A
lawyer who suggests that he or another lawyer is able to
influence a judge or other public official because of a
personal relationship violates Rule 8.4(e).” Lawyers’
Manual on Prof’l Conduct (ABA/BNA), at 101:703 (Mar.
30, 2011). Respondent argues that the dissemination of
the email was not improper because it did not suggest an
improper influence but instead was an “unusually gener-
ous compliment from an unnamed jurist . . . about [re-
spondent’s] skill at oral advocacy.” Decl. of Edward R.
Reines ¶ 19.
    While the dissemination of complimentary comments
by a judge contained in a public document would not itself




    3 See Girardi, 611 F.3d at 1035 (imposing discipline
for violations of Model Rule 3.1 and state bar rules); In re
Cook, 551 F.3d 542, 554 (6th Cir. 2009) (affirming district
court disbarment, citing violations of Model Rules 8.4, 1.8,
and 4.2 in support of discipline); In re Cordova-Gonzalez,
996 F.2d 1334, 1335 (1st Cir. 1993) (noting that attorney
also violated Model Rule 1.8(a) in affirming disbarment
imposed by district court for violation of Model Rule
8.4(d)).
IN RE REINES                                                7



constitute a violation of Model Rule 8.4(e), 4 we conclude
respondent’s actions violated the rule. First, the email
both explicitly describes and implies a special relationship
between respondent and then-Chief Judge Rader. The
text of the email describes a close friendship between the
two. The email included the language, “[i]n sum, I was
really proud to be your friend today,” and closed with
“[y]our friend for life.” The very fact that the email was a
private communication rather than a public document
implies a special relationship, and then-Chief Judge
Rader’s sharing of internal court discussions (which would
be ordinarily treated as confidential) about the lawyer’s
performance in a pending case implies an unusually close
relationship between respondent and the then-Chief
Judge. Respondent’s comments transmitting the email
also convey a special relationship with then-Chief Judge
Rader and the Federal Circuit. Respondent described the
email as “unusual” or “quite unusual” in some of his
accompanying comments, Reines Ex. 4; Ex. 8; Ex. 44; Ex.
45, and referenced his “stature” within the court and his
role as chair of the Federal Circuit’s Advisory Council,
Reines Ex. 38.
    Second, recipients of the email also viewed it as sug-
gesting the existence of a special relationship between
respondent and then-Chief Judge Rader and perhaps
other judges of the court. Several responses referred to
the high opinion then-Chief Judge Rader and judges in
general had for Mr. Reines. 5 Other responses specifically



    4 See, e.g., Public Citizen, Inc. v. La. Attorney Discipli-
nary Bd., 632 F.3d 212, 221–22 (5th Cir. 2011); Alexander
v. Cahill, 598 F.3d 79, 92 (2d Cir. 2010); see also Dwyer v.
Cappell, 762 F.3d 275, 283–84 (3d Cir. 2014).
    5 See Reines Ex. 15 (“it’s clear [judges] hold you in

high regard—you easily engage in discussions with them
8                                            IN RE REINES



referenced the friendship between respondent and then-
Chief Judge Rader. 6
    Third, the transmission of the email did more than
suggest that respondent should be retained because of his
superior advocacy skills. It suggested that his special
relationship with the court should be taken into account.
Respondent touted his role as chair of this court’s Adviso-
ry 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. Another lawyer in
respondent’s firm in forwarding the email stated that
respondent “knows the judges extremely well.” Reines Ex.
49. Albeit respondent noted that he did not approve of the
communication, he took no steps to advise the recipient of
his disapproval. Decl. of Edward R. Reines ¶ 21.
    Fourth, in sending the email to clients and prospec-
tive clients, respondent sought to directly influence their
decisions about retaining counsel. He typically stated,
“[a]s you continue to consider us for your Federal Circuit
needs, I thought the below email from Chief Judge Rader



and they often hang on your words and are eager to gain
insights from you”); Ex. 15 (“it was completely evident in
the event in your offices last month that the judges had
an enormous amount of respect for you”); Ex. 16 (the
email “speaks of the high regard he and others have for
you”).
    6 See Reines Ex. 28 (“I share with Judge Rader great

admiration for your legal acumen, as well as the honor of
your friendship.”); Ex. 40 (“It’s clear [then-Chief Judge
Rader]’s an enormous fan.”); Ex. 48 (then-Chief Judge
Rader seemed like “a pretty cool dude and a great friend
too”).
IN RE REINES                                              9



might be helpful.” Reines Ex. 11. 7 Prospective clients
likewise stated that they would consider it in making
retention decisions. 8
    Finally, the email itself and respondent’s comments
accompanying the sending of the email suggested that
Federal Circuit judges would look favorably on the reten-
tion of respondent. Then-Chief Judge Rader invited
respondent to distribute the email to others. Respondent
suggested that clients should “listen[] to . . . the Federal
Circuit judges[.]” Reines Ex. 30.
    It would blink reality not to view respondent’s action
as suggesting his retention because his special relation-


   7   Reines included the same language in many of his
emails. See Reines Ex. 3; Ex. 10; Ex. 13; Ex. 15; Ex. 16;
Ex. 17; Ex. 19; Ex. 20; Ex. 21; Ex. 22; Ex. 23; Ex. 24; Ex.
29; Ex. 30; Ex. 32; Ex. 33; Ex. 34; Ex. 35; Ex. 36; Ex. 39;
Ex. 41; Ex. 42; Ex. 43; Ex. 46; Ex. 48 (all containing the
same or similar language.); see also Reines Ex. 4 (“I would
be delighted to work with you again should that fit your
needs.”); Reines Ex. 8 (“With these appeals completed, I’m
hopeful that we will continue to work with TF and the
Life unit, notwithstanding the exciting changes. Your
support in that regard would of course also be appreciat-
ed.”).
    8 See Ex. 3 (“I will certainly keep it in mind”); Ex. 19

(“Will keep [the email] here. Very useful.”); Ex. 22 (“I’m
definitely interested in learning more about Weil’s appel-
late practice.”); Ex. 30 (“[A colleague] was just saying the
same thing recently and suggested we find a way to get
you more involved with our appeal strategies and Fed Cir
activities.”); Ex. 39 (“we will keep your firm in mind going
forward”); Ex. 41 (“we will definitely keep you in mind”);
Ex. 46 (“We will keep you in mind, for sure, in our trips to
the Federal Circuit.”).
10                                           IN RE REINES



ship would help to secure a favorable outcome at the
Federal Circuit. Under these circumstances, forwarding
the email to clients and potential clients “impl[ies] 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.” Model Rules of
Prof’l Conduct R. 8.4(e) (2014).
                            IV
    The next question is what discipline should be im-
posed.
    In determining the discipline to impose, we look to
“the existence of any aggravating or mitigating factors.”
Model Rules for Lawyer Disciplinary Enforcement R.
10(C)(4). In this respect, we consider that respondent is
generally well-regarded in the legal community and has
rendered important service to this court as the chair of its
Advisory Council and in other capacities. It appears that
he has never previously been disciplined. Respondent has
recognized that “it was a mistake to distribute the Email,
and [he] apologize[d] for having done so.” Personal State-
ment of Edward E. Reines. The violation involved an
implicit suggestion rather than an explicit statement of
ability to influence. Then-Chief Judge Rader’s invitation
to share the message with others also mitigates the
impropriety of the respondent’s action though it does not
excuse it.
    We note, however, that we are troubled by certain
statements by Mr. Reines seeking to minimize his rela-
tionship with then-Chief Judge Rader. 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 rela-
tionship. 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.
IN RE REINES                                               11



     Under the circumstances, and considering all the rel-
evant circumstances, we conclude that a public reprimand
is the appropriate discipline.
                             V
    Respondent argues that the First Amendment pro-
tects disseminating compliments received from judges and
makes it unconstitutional to subject him to discipline.
    The Supreme Court has held that attorney advertis-
ing may not be “subjected to blanket suppression.” Bates
v. State Bar of Ariz., 433 U.S. 350, 383 (1977). In Bates,
the Court held that advertisements that listed legal
services and corresponding prices could not be restricted.
See id. at 384; see also In re R.M.J., 455 U.S. 191, 205–06
(1982) (state could not ban an attorney from sending
mailings about an office opening to a general audience);
In re Primus, 436 U.S. 412, 422 (1978) (state could not
discipline sending a targeted letter “communicating an
offer of free assistance by attorneys associated with the
ACLU” in order to “express personal political beliefs and
to advance the civil-liberties objectives of the ACLU,
rather than derive financial gain”); Zauderer v. Office of
Disciplinary Council of Supreme Court of Ohio, 471 U.S.
626, 645 (1985) (state could not impose discipline for
newspaper advertisements which were “easily verifiable
and completely accurate”).
     But the right to communicate with clients and pro-
spective clients is not unfettered. In Ohralik v. Ohio State
Bar Ass’n, 436 U.S. 447 (1978), the Court upheld disci-
pline against a lawyer for in-person solicitation of clients,
recognizing the state’s “particularly strong” interest in
attorney conduct. Ohralik, 436 U.S. at 449, 460. The
Supreme Court also upheld the constitutionally of a
state’s “30-day restriction on targeted direct-mail solicita-
tion of accident victims and their relatives,” recognizing
the bar’s “substantial interest both in protecting injured
[citizens] from invasive conduct by lawyers and in pre-
12                                            IN RE REINES



venting the erosion of confidence in the profession . . . .”
Fla. Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995).
    A lawyer’s dissemination of compliments contained in
judicial opinions was addressed in Dwyer v. Cappell, 762
F.3d 275 (3d Cir. 2014). The Third Circuit held that an
attorney-conduct guideline banning advertising with
quotations from judicial opinions unless the opinions
appear in full was unconstitutional. Id. at 276. But re-
spondent cites no authority and we are aware of none
which calls into question the validity of Model Rule 8.4(e)
or recognizes a right to suggest a special relationship with
a judge to improperly influence a court.
     As the Supreme Court recognized in Ohralik and
Florida Bar, a strong interest exists in protecting the
integrity of the legal profession and in protecting the
public from misleading commercial speech by attorneys.
See Ohralik, 436 U.S. at 460; Fla. Bar, 515 U.S. at 635.
The compliments here were centered in a private commu-
nication and both stated and implied a special relation-
ship between the respondent and then-Chief Judge Rader.
The comments to existing and potential clients invited
respondent’s retention in future matters based on this
relationship. Attorney speech which “state[s] or impl[ies]
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,” Model Rules
of Prof’l Conduct R. 8.4(e) (2014), is either misleading
(because the attorney has no ability to influence the
official) or, if true, solicits business based on an offer to
improperly influence the public official.
                             VI
    In the course of considering the email matter dis-
cussed above, we considered another matter relating to
Mr. Reines. This additional matter is separate from and
does not directly involve the email matter discussed
above. This matter concerns the exchange of items of
IN RE REINES                                              13



value between Mr. Reines and then-Chief Judge Rader.
On Mr. Reines’s side, he provided a ticket for one concert,
at another concert arranged for upgrading to a standing
area near the stage, and arranged for backstage access for
then-Chief Judge Rader at both. Then-Chief Judge Rader
paid for accommodations. This occurred while Mr. Reines
had cases pending before this court. We do not decide
whether Mr. Reines’s actions violated standards of profes-
sional responsibility. We have decided to refer this sepa-
rate matter and the underlying relevant documents to the
California bar authorities for their consideration.
    In the ordinary course, having concluded that a public
reprimand is warranted, we would disclose the full record
of proceedings. See Fed. Cir. Attorney Disc. R. 10(b). We
are authorized, however, to maintain confidentiality of
portions of the record. In referring this matter to the
California bar authorities, we have determined to enter a
protective order and to place the filings relating to the
matter under seal since this does not concern a matter as
to which we have imposed discipline. Federal Circuit
Attorney Discipline Rule 10(b) allows for placing a “per-
manent protective order prohibiting the disclosure of any
part of the record to protect the interest of a complainant,
a witness, a third party or nonparty, or the attorney” even
after an order has issued. Fed. Cir. Attorney Disc. R.
10(b). The California rules also provide for confidentiality
during the period of investigation. Cal. Bus. & Prof. Code
§ 6086.1(b). We leave it to the California bar authorities
whether and when such materials should be disclosed.
   Accordingly,
   IT IS ORDERED THAT:
   (1)     Respondent is publicly reprimanded, and the
           pleadings related to the show cause order are
           placed on the public record;
14                                           IN RE REINES



     (2)   Respondent shall send copies of this Order to
           all courts or jurisdictions in which he is admit-
           ted; and
     (3)   The unresolved matter is referred to the Cali-
           fornia bar authorities, together with relevant
           correspondence, and those documents shall be
           placed under seal, without prejudice as to a
           determination by the California bar authori-
           ties whether the matter should be disclosed.
                                   FOR THE COURT

November 5, 2014                   /s/ Daniel E. O’Toole
     Date                          Daniel E. O’Toole
                                   Clerk of Court

cc: Michael Sundermeyer, William Burke, and Peter
Anthony