Case: 22-9000 Document: 2 Page: 1 Filed: 02/25/2022
United States Court of Appeals for the Federal Circuit ______________________
IN RE: VIOLATION OF THE REVISED PROTOCOLS FOR IN-PERSON ARGUMENTS AND RELATED ORDER ______________________
2022-9000 ______________________
Before DYK, WALLACH, and STOLL, Circuit Judges.
PER CURIAM. ORDER Respondents, who are members of this court’s bar, were ordered to show cause why disciplinary action should not be imposed for, inter alia, violating this court’s Revised Protocols for In-Person Arguments (August 12, 2021) (here- inafter, “the Revised Protocols”) and an order that denied their motion to allow additional attendees at oral argu- ment. Having received the responses by Respondents, the court’s standing panel on attorney misconduct now consid- ers whether to take disciplinary action. I. A. Some background is helpful to put the relevant events in perspective. In response to the COVID-19 pandemic, this court issued administrative orders in 2020 that pro- hibited public access to the National Courts Building and suspended all in-person oral arguments. See Case: 22-9000 Document: 2 Page: 2 Filed: 02/25/2022
2 IN RE: VIOLATION OF THE REVISED PROTOCOLS
Administrative Orders 2020-02, 2020-03. When this court resumed allowing counsel in the courthouse for argument in September 2021, we kept in place the restrictions on public access to the National Courts Building, see Admin- istrative Order 2021-10, and put in place strict protocols governing appearances at oral argument in order to protect the health and safety of the court and its staff, the bar, and the public. Under the in-person argument protocols in effect dur- ing the events here, “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel (e.g., a client, lawyer sitting sec- ond chair, or paralegal)” were “permitted access to the Na- tional Courts Building and the courtroom.” The Revised Protocols also required all persons entering the building to complete Form 33C declaring under penalty of perjury that the individual was “scheduled to appear in person for argu- ment at the National Courts Building in Washington, D.C. either as (a) arguing counsel or (b) to assist or to supervise arguing counsel” and that the individual was either fully vaccinated for COVID-19 or received a negative test result for COVID-19 that was administered within 48 hours of the argument scheduled in the argued matter. To ensure compliance with the Revised Protocols, the court required that arguing counsel also complete Form 33A, certifying that “I understand and agree that, as an officer of the court, I am personally responsible for ensur- ing all individuals attending argument with me have also read and will comply with the Revised Protocols,” and that “I further understand and agree that it is my responsibility to ensure that all individuals attending argument with me remain in compliance with the Revised Protocols while in the National Courts Building.” In completing that form, arguing counsel also certified that he or she understood that “failure to abide by any of” the provisions certified in the form “may subject [him or her] to discipline.” Case: 22-9000 Document: 2 Page: 3 Filed: 02/25/2022
IN RE: VIOLATION OF THE REVISED PROTOCOLS 3
B. The following facts appear undisputed: Respondents are two partners and a special counsel at the same law firm that represented a party in an appeal before this court. A few days before the scheduled in-person argument, Re- spondents filed a motion seeking leave of court for two of the Respondents as well as two other individuals to attend in addition to arguing counsel (also a Respondent) and the one person authorized to be in the building and the court- room who was necessary to assist or supervise arguing counsel. The proposed attendees were named in the mo- tion. The motion was forwarded to the merits panel on the appeal for consideration. The panel denied that motion without further elaboration. After receiving the order rejecting the request for addi- tional attendees, Respondents decided that when one of the Respondent partners argued, an associate would be the one official attendee allowed to assist the arguing partner dur- ing the argument. 1 Though they received the order deny- ing their request to enter the building and attend argument only two days prior to argument, the responses state that Respondents nonetheless “determined that [the special counsel and the non-arguing partner] could go to the Court, identify who they were, and ask if they could attend, if circumstances had changed.” The responses ex- plain that “[t]hey were hoping . . . that the panel would let them attend.”
1 While the associate was directed to show cause, the court has determined that he committed no misconduct and therefore has dismissed all charges against him. Case: 22-9000 Document: 2 Page: 4 Filed: 02/25/2022
4 IN RE: VIOLATION OF THE REVISED PROTOCOLS
On the day of argument, all four attorneys, each in pos- session of a signed Form 33C, proceeded together through the security gate at the entrance to the National Courts Building. After passing through security, the Respondents took an elevator to the second floor where the courtroom was located and entered the assigned courtroom. After en- tering the courtroom, special counsel and the non-arguing partner took a seat in a back corner of the courtroom and were shortly thereafter summoned to the front of the court- room by one of the court’s deputy clerks. The deputy clerk informed the special counsel and the non-arguing partner that they could not be in the courtroom, and both returned to the lobby area. The special counsel and the non-arguing partner were subsequently told that they were not permit- ted in the building and escorted out. The matters were subsequently referred to the court’s standing panel on attorney discipline. The panel ordered the Respondents to show cause as to why their actions did not warrant discipline for violating the Revised Protocols and the order denying the motion for additional attendees. Respondents respond that any failure to comply with the Revised Protocols and the court’s order denying extra at- tendees was not intentional. Respondents further contend that it was not unreasonable for special counsel and the non-arguing partner to come to the court on the day of ar- gument so that Respondents could seek permission and clarification on whether they could attend the argument. II. Federal Rule of Appellate Procedure 46(c) provides that “[a] court of appeals may discipline an attorney who prac- tices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.” We have also adopted Federal Circuit Attorney Discipline Rules, which make clear that “[a]n act or omission by an attorney that violates the Federal Rules of Appellate Procedure, the Fed- eral Circuit Rules, these rules, or orders or instructions of Case: 22-9000 Document: 2 Page: 5 Filed: 02/25/2022
IN RE: VIOLATION OF THE REVISED PROTOCOLS 5
the court . . . may be the basis for discipline.” Fed. Cir. Att’y Disc. R. 2(d). Although the Revised Protocols are not incorporated by reference or otherwise in any rule of this court, they are instructions of this court and help define conduct becoming a member of this court’s bar. Accord- ingly, we are authorized to impose sanctions on an attorney whose actions or omissions violate the Revised Protocols.
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Case: 22-9000 Document: 2 Page: 1 Filed: 02/25/2022
United States Court of Appeals for the Federal Circuit ______________________
IN RE: VIOLATION OF THE REVISED PROTOCOLS FOR IN-PERSON ARGUMENTS AND RELATED ORDER ______________________
2022-9000 ______________________
Before DYK, WALLACH, and STOLL, Circuit Judges.
PER CURIAM. ORDER Respondents, who are members of this court’s bar, were ordered to show cause why disciplinary action should not be imposed for, inter alia, violating this court’s Revised Protocols for In-Person Arguments (August 12, 2021) (here- inafter, “the Revised Protocols”) and an order that denied their motion to allow additional attendees at oral argu- ment. Having received the responses by Respondents, the court’s standing panel on attorney misconduct now consid- ers whether to take disciplinary action. I. A. Some background is helpful to put the relevant events in perspective. In response to the COVID-19 pandemic, this court issued administrative orders in 2020 that pro- hibited public access to the National Courts Building and suspended all in-person oral arguments. See Case: 22-9000 Document: 2 Page: 2 Filed: 02/25/2022
2 IN RE: VIOLATION OF THE REVISED PROTOCOLS
Administrative Orders 2020-02, 2020-03. When this court resumed allowing counsel in the courthouse for argument in September 2021, we kept in place the restrictions on public access to the National Courts Building, see Admin- istrative Order 2021-10, and put in place strict protocols governing appearances at oral argument in order to protect the health and safety of the court and its staff, the bar, and the public. Under the in-person argument protocols in effect dur- ing the events here, “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel (e.g., a client, lawyer sitting sec- ond chair, or paralegal)” were “permitted access to the Na- tional Courts Building and the courtroom.” The Revised Protocols also required all persons entering the building to complete Form 33C declaring under penalty of perjury that the individual was “scheduled to appear in person for argu- ment at the National Courts Building in Washington, D.C. either as (a) arguing counsel or (b) to assist or to supervise arguing counsel” and that the individual was either fully vaccinated for COVID-19 or received a negative test result for COVID-19 that was administered within 48 hours of the argument scheduled in the argued matter. To ensure compliance with the Revised Protocols, the court required that arguing counsel also complete Form 33A, certifying that “I understand and agree that, as an officer of the court, I am personally responsible for ensur- ing all individuals attending argument with me have also read and will comply with the Revised Protocols,” and that “I further understand and agree that it is my responsibility to ensure that all individuals attending argument with me remain in compliance with the Revised Protocols while in the National Courts Building.” In completing that form, arguing counsel also certified that he or she understood that “failure to abide by any of” the provisions certified in the form “may subject [him or her] to discipline.” Case: 22-9000 Document: 2 Page: 3 Filed: 02/25/2022
IN RE: VIOLATION OF THE REVISED PROTOCOLS 3
B. The following facts appear undisputed: Respondents are two partners and a special counsel at the same law firm that represented a party in an appeal before this court. A few days before the scheduled in-person argument, Re- spondents filed a motion seeking leave of court for two of the Respondents as well as two other individuals to attend in addition to arguing counsel (also a Respondent) and the one person authorized to be in the building and the court- room who was necessary to assist or supervise arguing counsel. The proposed attendees were named in the mo- tion. The motion was forwarded to the merits panel on the appeal for consideration. The panel denied that motion without further elaboration. After receiving the order rejecting the request for addi- tional attendees, Respondents decided that when one of the Respondent partners argued, an associate would be the one official attendee allowed to assist the arguing partner dur- ing the argument. 1 Though they received the order deny- ing their request to enter the building and attend argument only two days prior to argument, the responses state that Respondents nonetheless “determined that [the special counsel and the non-arguing partner] could go to the Court, identify who they were, and ask if they could attend, if circumstances had changed.” The responses ex- plain that “[t]hey were hoping . . . that the panel would let them attend.”
1 While the associate was directed to show cause, the court has determined that he committed no misconduct and therefore has dismissed all charges against him. Case: 22-9000 Document: 2 Page: 4 Filed: 02/25/2022
4 IN RE: VIOLATION OF THE REVISED PROTOCOLS
On the day of argument, all four attorneys, each in pos- session of a signed Form 33C, proceeded together through the security gate at the entrance to the National Courts Building. After passing through security, the Respondents took an elevator to the second floor where the courtroom was located and entered the assigned courtroom. After en- tering the courtroom, special counsel and the non-arguing partner took a seat in a back corner of the courtroom and were shortly thereafter summoned to the front of the court- room by one of the court’s deputy clerks. The deputy clerk informed the special counsel and the non-arguing partner that they could not be in the courtroom, and both returned to the lobby area. The special counsel and the non-arguing partner were subsequently told that they were not permit- ted in the building and escorted out. The matters were subsequently referred to the court’s standing panel on attorney discipline. The panel ordered the Respondents to show cause as to why their actions did not warrant discipline for violating the Revised Protocols and the order denying the motion for additional attendees. Respondents respond that any failure to comply with the Revised Protocols and the court’s order denying extra at- tendees was not intentional. Respondents further contend that it was not unreasonable for special counsel and the non-arguing partner to come to the court on the day of ar- gument so that Respondents could seek permission and clarification on whether they could attend the argument. II. Federal Rule of Appellate Procedure 46(c) provides that “[a] court of appeals may discipline an attorney who prac- tices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.” We have also adopted Federal Circuit Attorney Discipline Rules, which make clear that “[a]n act or omission by an attorney that violates the Federal Rules of Appellate Procedure, the Fed- eral Circuit Rules, these rules, or orders or instructions of Case: 22-9000 Document: 2 Page: 5 Filed: 02/25/2022
IN RE: VIOLATION OF THE REVISED PROTOCOLS 5
the court . . . may be the basis for discipline.” Fed. Cir. Att’y Disc. R. 2(d). Although the Revised Protocols are not incorporated by reference or otherwise in any rule of this court, they are instructions of this court and help define conduct becoming a member of this court’s bar. Accord- ingly, we are authorized to impose sanctions on an attorney whose actions or omissions violate the Revised Protocols. Turning to the disciplinary matters at hand, we con- clude that the fact that the arguing partner was accompa- nied by the special counsel and the non-arguing partner clearly violated the Revised Protocols. The Revised Proto- cols were perfectly clear that “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel” were “permitted access to the National Courts Building and the courtroom.” The language of Form 33C, which Respondents readily understood was required when in the building, further re- inforced these access restrictions. That form required a declaration under penalty of perjury that the individual was “scheduled to appear in person for argument at the Na- tional Courts Building in Washington, D.C. either as (a) arguing counsel or (b) to assist or to supervise arguing counsel.” This language, together with the language of the Revised Protocols just quoted, put all here on clear notice that the non-arguing partner and special counsel could not be in the building as spectators or additional attendees there to assist or supervise arguing counsel. If there was some ambiguity or reasonable basis for confusion, we would be inclined to resolve that in Respond- ents’ favor. See United States v. Brown, 72 F.3d 25, 29 (5th Cir. 1995); In re Ruffalo, 390 U.S. 544, 556 (1968) (White, Case: 22-9000 Document: 2 Page: 6 Filed: 02/25/2022
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J., concurring). However, there was no ambiguity in the protocols. 2 Most troubling is Respondents’ decision to come to- gether in person to the National Courts Building after this court had just denied their motion for additional attendees only two days earlier. The suggestion that the Revised Pro- tocols or court order permitted in-person attendance to orally request permission and clarification of the court’s or- der denying such permission is not reasonable. The court’s Revised Protocols and the panel’s order limited the number of attendees in the building and courtroom. Respondents’ decision to violate these orders by entering the building and courtroom for purpose of seeking permission to violate the orders is not reasonable. Given the Revised Protocols and express denial of their motion by the court, it was in- cumbent on Respondents to file a written motion for recon- sideration or clarification rather than simply show up at the courthouse in violation of the protocols to again seek permission to attend argument. Any contention that court staff somehow authorized entry is irrelevant. Court staff, including court security officers, cannot override a court or- der. For these reasons, we conclude that the Revised
2 Respondents rely on two sentences in the protocols that reference counsel and “attendees,” see the Revised Pro- tocols at page 1 (“Counsel and attendees may access only the main lobby, the public elevators, the courtroom desig- nated for argument, and the lobby area and restrooms im- mediately outside of the designated courtroom. Following security screening in the main lobby, counsel and attendees must report directly to the assigned courtroom . . . .”), but it is clear from context that these are instructions for au- thorized attendees and did not overrule the explicit lan- guage of the protocols and order limiting those who could attend. Respondents’ argument that the protocols are am- biguous is wholly without merit. Case: 22-9000 Document: 2 Page: 7 Filed: 02/25/2022
IN RE: VIOLATION OF THE REVISED PROTOCOLS 7
Protocols and the order were violated by Respondents, and there was no ambiguity in those instructions. Despite these violations, because Respondents express earnest remorse, have not previously been accused of mis- conduct, and because this situation has not arisen before, we have decided not to impose sanctions. See In re Viola- tion of Rule 50, 78 F.3d 574, 576 (Fed. Cir. 1996). However, the bar is on notice that this court takes compliance with these protocols very seriously and that sanctions will likely be imposed if a future violation of the protocols takes place. We have said that for this court “to get its work done,” it “must insist on strict compliance with its rules.” In re Vio- lation of Rule 28(c), 388 F.3d 1383, 1385 (Fed. Cir. 2004). That sentiment applies with particular force to our instruc- tions governing in-person arguments while the court and the bar continue to navigate the COVID-19 pandemic given the health and safety implications.
FOR THE COURT
February 25, 2022 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court