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Good thing for Alex Kozinski the federal claims court was run in the early 1980s by a certain judge named Alex Kozinski. The 9th U.S. Circuit Court of Appeals chief judge reached back to his salad days this week for a precedent that would allow him to impose sanctions on an attorney who filed a frivolous discipline complaint against a district judge. Both the judge and attorney at issue are unnamed in Kozinski’s opinion, as is standard practice in judicial discipline cases. After the lawyer lost, he filed a complaint alleging the judge hid evidence, took bribes and framed him, Kozinski wrote, without providing any evidence. “Complainant is an attorney, so he should know better than to file such an obviously frivolous and abusive complaint,” Kozinski wrote. “He has wasted considerable judicial resources for no purpose whatsoever.” The chief judge then asked the attorney to explain why he shouldn’t be sanctioned. This is rare in and of itself, said Arthur Hellman, professor at the University of Pittsburgh School of Law. Rarer still is seeking sanctions for an apparent first transgression, Hellman said. The only case Kozinski cites where this has happened before is In Re Complaint of Judicial Misconduct, a 1983 ruling from the claims court. The chief judge headed that court from 1982 until his elevation to the 9th Circuit in 1985. “That’s really the precedent for this,” Hellman said, adding that he didn’t think the opinion would chill attorneys from filing discipline complaints because the alleged conduct in this case was clearly egregious. Kozinski addressed the “chilling” issue head on when he was in his 30s but not in his late 50s. “Where an attorney has reasonable cause to believe that a judge before whom he is appearing is subject to a conflict of interest or is guilty of misconduct, he has a right, indeed a solemn duty, to come forward with the information,” Kozinski wrote in 1983. “We must do nothing which will inhibit the presentation of good faith charges concerning judges.” He was also more speculative back then. “The court cannot overlook the possibility that counsel may be generating fees (or gaining some other advantage) by their litigious activity,” Kozinski wrote, “without providing a commensurate benefit to their clients.” Hellman said he thinks the attorney in this current case will likely ask for Kozinski’s mercy and seek to protect his or her identity. “But I’m assuming rational behavior on the part of the lawyer, and that may not be a good assumption in terms of what’s already been done,” Hellman said.

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