SAN FRANCISCO — Randall Rader resigned as chief judge of the U.S. Court of Appeals for the Federal Circuit on Friday, admitting in an open letter he’d made ethical missteps.
Rader apologized for “conduct that crossed the lines” when he sent an email to Weil, Gotshal & Manges partner Edward Reines praising Reines’ skills and encouraging him to share the email with others. In perhaps a more serious transgression, Rader also conveyed a Federal Circuit colleague’s enthusiasm for Reines’ performance in two cases he’d just argued to the court.
Rader will remain on the court but relinquish the chief judgeship on May 30 to Judge Sharon Prost, apparently the same judge whose confidence Rader betrayed with his March 5 email.
“While I never expected that email to emerge as it did, I realize in retrospect that the email constituted a breach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others,” Rader wrote to his Federal Circuit colleagues in a letter posted on the court’s website Friday.
Rader’s letter helps explain why the judge was recused from two cases earlier this month after issuing an order in one and an opinion in the other, and why Reines vacated the chairmanship of the Federal Circuit Advisory Council. Reines did not respond to a voice mail seeking comment.
The controversy apparently stems from two cases Reines argued back-to-back on behalf of Life Technologies Corp. to a Federal Circuit panel comprising Judges Prost, Haldane Mayer and Raymond Chen on March 4. Rader emailed Reines the next day, saying that over lunch one of his colleagues had remarked on Reines’ prowess against Wilmer Cutler Pickering Hale and Dorr partner 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,” Rader wrote.
“In sum, I was really proud to be your friend today!” Rader added. “Actually, I not only do not mind, but encourage you to let others see this message.”
The email does not identify which judge Rader was referring to, but Prost was the only female member of the panel. The court issued a summary Rule 36 affirmance against Life Technologies and Reines in one of the two cases March 10. The other case—the one Waxman participated in—remains pending.
Patent lawyers said Friday they expect Rader’s four-year tenure as chief to be remembered primarily for helping expand global understanding of intellectual property law. Rader led the Federal Circuit at joint judicial conferences in China, Japan and South Korea, with hundreds of judges from those countries attending each event.
Rader “moved the dial on the patent discussion internationally,” said Drinker Biddle IP chief Robert Stoll, noting as one example that Japan’s IP court is now accepting amicus curiae briefs. “Sometimes the governments are blocked but the judges can keep talking to each other.”
“He has made the Federal Circuit a household name throughout the world,” said Finnegan, Henderson, Farabow, Garrett & Dunner partner Donald Dunner, adding that’s no small matter in an increasingly global economy.
The same outgoing personality also has led to deep friendships in the patent bar, including with Reines, one of the top patent lawyers in the country.
Rader wrote that such friendships “did not and would not ever compromise my impartiality in judging any case before me.
“But avoiding even the appearance of partiality is a vital interest of our courts,” he added, “and I compromised that interest by transgressing limits on judges’ interactions with attorneys who appear before the court. I was inexcusably careless, and I sincerely apologize.”
New York University law professor Stephen Gillers, an expert on legal and judicial ethics, said there’s nothing unusual about judges having friendships with attorneys who appear in their court. “In small communities and specialized law practices it’s impossible to avoid it,” he said.
But very close friendships can require recusal to maintain the appearance of impartiality, he said, and Rader clearly went too far by putting his praise in an email and inviting Reines to share it with others. “That’s money in the bank in the competition for patent clients,” Gillers said. “It would be different if Rader said to Reines at a bar conference next time they met, ‘You did a really good job on such-and-such case.’”
Gillers added he thought a rehearing before a new panel would be in order for the pending Life Technologies case. That would be true even if, as Rader asserted in his open letter, his description of his colleague’s comments contained “certain inaccuracies.”
“We’re dealing here with appearances, which are important or, as the old saying goes, the appearance of justice is as important as justice,” Gillers said.
How Rader’s email to Reines surfaced and how it came to the attention of the court weren’t clear Friday. The first sign that something was amiss came May 5, when the court withdrew an opinion in a case Reines had argued and then reissued it without a dissent Rader had written. Two days later the court withdrew a stay order in a high-profile medical device case involving Reines and substituted another judge in Rader’s place.
“Working with the court,” Rader wrote in his letter, “I have taken steps to remedy the breaches for which I was responsible by recusing in cases as to which a question might be raised as to my impartiality. … I am truly sorry for the lapse and will work diligently to ensure that it does not recur.”
Rader became eligible for senior status last month, though he had three years remaining on his seven-year term as chief. Had he served out his entire term, the chief position would have passed to Judge Kimberly Moore in May 2017, because Prost, 63, would have reached senior status by then.
Keker & Van Nest partner Matthias Kamber, who clerked for Prost 10 years ago, said there was some speculation in the bar that Rader might end his term a bit early to give Prost a chance to be chief, though he was unaware of any discussions between the two.
He described Prost as a judge who spends a lot of time with other judges in chambers hashing out cases. “I think she’s going to work on building coalitions on the big issues,” he said, noting the court has fractured in some high-profile en banc cases recently. “Who’s to say it would have been any different under different leadership? Part of her strength is to help people find common ground on those issues, and I’m hopeful as chief she’s going to be able to pull that off.”
In farewell remarks to the Federal Circuit Bar Association on Friday, Rader counted international judicial cooperation as one of his proudest achievements as chief. He also spoke of helping six new judges getting acclimated to the court, launching an electronic filing and case management system, and guiding the court through federal budget sequestration. The transition from chief judge will give him more time for his “first love” of sitting by designation as a trial judge in various district courts, he said, while teaching intellectual property at U.S. and foreign law schools.
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