Federal Circuit Rejects First Amendment Challenge to Attorney "Advertising" Discipline

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a per curiam Order of the Federal Circuit in In re Reines, the court disciplined an attorney for disseminating to clients and potential clients a highly complimentary email from a judge, rejecting a First Amendment claim. 

The email, from then-Chief Judge Rader, since resigned, was not only complimentary, but problematically implied an improper ability to influence.  

As the Federal Circuit opinion noted:

The compliments here were centered in a private communication and both stated and implied a special relationship 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.

The court rehearsed the Supreme Court's attorney commercial speech cases.  It also distinguished the recent Third Circuit opinion in Dwyer v. Cappell finding a First Amendment violation by a New Jersey rule prohibiting excerpts from cases mentioning the attorney although the "full text" of the opinion was permitted.

The underlying email, worth reading in full:

 Appendix A to the court's opinion:

From: ‘‘Chief Judge Rader, Randall R.’’

<[email protected]>
Date: March 5, 2014 at 3;24:12 PM EST

To: Edward Reines <edward.reines@ weil.com>

Subject: Congratulations

Ed,

On Wednesday, as you know, the judges meet for a strictly social lunch. We usual- ly discuss politics and pay raises. Today, in the midst of the general banter, one of my female colleagues interrupted 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 question with confidence and grace. She said that she was really impressed with your performance. Two of my other colleagues immediately echoed her enthusiasm over your performance.

I, of course, pointed out that I had taught you everything you know in our recent class at Berkeley together . . . NOT! I added the little enhancement that you can do the same thing with almost 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 encourage you to let others see this message.

Your friend for life, rrr