In Re Reines
2014 U.S. App. LEXIS 21107, 112 U.S.P.Q. 2d (BNA) 1785, 771 F.3d 1326 (2014)
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Rule of Law:
An attorney engages in professional misconduct by disseminating a private communication from a judge to clients or prospective clients if doing so states or implies a special relationship that could be used to improperly influence a government official or agency.
Facts:
- Edward R. Reines, an attorney, represented appellants in two companion cases and presented oral arguments before the U.S. Court of Appeals for the Federal Circuit on March 4, 2014.
- The next day, then-Chief Judge Rader, who was not on the judicial panel for Reines's cases, sent Reines a private email.
- The email praised Reines's performance, recounting positive comments from other judges made during a private judges-only lunch.
- The email explicitly referenced a close friendship, with Judge Rader calling Reines "my friend" and closing with "Your friend for life."
- Judge Rader's email contained an invitation for Reines to "let others see this message."
- Reines forwarded the email to at least 35 existing and prospective clients, with accompanying comments soliciting their business and describing the judicial feedback as "unusual."
- In some communications forwarding the email, Reines also referenced his "stature" within the court and his role as chair of the court's Advisory Council.
Procedural Posture:
- The U.S. Court of Appeals for the Federal Circuit ordered respondent Edward R. Reines to show cause as to why his actions associated with the email did not warrant discipline.
- Reines submitted a response to the show cause order, arguing that he did not imply improper influence and that discipline would violate his First Amendment rights.
- Reines did not request a hearing in the matter.
- The U.S. Court of Appeals for the Federal Circuit determined to consider the matter en banc.
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Issue:
Does an attorney's dissemination of a private, complimentary email from a judge to existing and prospective clients, which highlights a special friendship, imply an ability to improperly influence a government official in violation of Model Rule of Professional Conduct 8.4(e)?
Opinions:
Majority - Per Curiam
Yes. An attorney's dissemination of a private, complimentary email from a judge that highlights a special friendship implies an ability to improperly influence a government official, constituting professional misconduct under Model Rule 8.4(e). The court reasoned that the email's text explicitly described a close friendship, and its private nature—sharing normally confidential internal court discussions—implied an unusually close relationship. Reines's own accompanying comments, which described the feedback as "unusual" and touted his "stature," furthered this implication. By sending the email to clients and potential clients with solicitations for business, Reines suggested that his special relationship should be a factor in his retention, implying it could help secure a favorable outcome. While the First Amendment protects some attorney advertising, it does not protect commercial speech that is misleading or proposes improper conduct, such as leveraging a personal relationship to influence a court.
Analysis:
This decision serves as a significant ethical warning to the bar regarding the marketing of personal relationships with members of the judiciary. It clarifies that an attorney has an independent ethical obligation not to imply an ability to exert improper influence, even if a judge invites the dissemination of a complimentary communication. The case draws a sharp line between permissible advertising, such as quoting a public judicial opinion, and impermissible conduct that leverages private, non-public information and relationships for commercial gain. This precedent reinforces the judiciary's interest in maintaining public confidence in its impartiality by sanctioning attorneys who suggest that outcomes can be influenced by personal connections rather than the merits of a case.
