Wednesday, November 05, 2014

Reines reprimanded in Rader "recognition" matter; CAFC issues public rebuke for misconduct in disseminating an email of praise

From the decision In re Reines

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 Association’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 misconduct
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 consideration
in the selection of counsel.” Decl. of Edward R.
Reines ¶ 19. Respondent also argued that ordering discipline
would be unconstitutional under the First Amendment.
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).

Bottom line:

Respondent is publicly reprimanded, and the
pleadings related to the show cause order are
placed on the public record

The CAFC listed several factors, including

Fourth, in sending the email to clients and prospective
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
might be helpful.” Reines Ex. 11.7 Prospective clients
likewise stated that they would consider it in making
retention decisions.8

footnote 8 states:

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 appellate
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.”).

Of First Amendment issues:

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 respondent
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.

There is an open issue:

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. (...)

This occurred while Mr. Reines
had cases pending before this court. We do not decide
whether Mr. Reines’s actions violated standards of professional
responsibility. We have decided to refer this separate
matter and the underlying relevant documents to the
California bar authorities for their consideration.


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