Kozinski appeared on a Ninth Circuit brief alongside lawyers from Toberoff & Associates filed Dec. 10 on behalf of the son of Pulitzer Prize-winning author Paul Zindel, who claims the filmmakers behind the Academy Award-winning film “The Shape of Water” ripped off multiple copyrighted elements of his father’s play “Let Me Hear You Whisper.”
Kozinski and the Toberoff lawyers are attempting to revive the case after a federal judge in Los Angeles this year dismissed the lawsuit, finding that although there were some minor similarities between the works, they weren’t substantially similar.
In a brief phone interview Friday, Marc Toberoff said that Kozinski has served “of counsel” to his firm, a Malibu-based intellectual property boutique known for taking on cases representing the heirs of superhero creators in disputes with Hollywood studios, but said he couldn’t say when the relationship started. When asked if the representation might create conflicts at the Ninth Circuit, Toberoff suggested that judges leave the bench for private practice regularly.
“Is that a new thing?” said Toberoff, declining to comment further, citing his client’s pending Ninth Circuit appeal.
Although judges may with some regularity return to private practice after leaving the bench, the circumstances of Kozinski’s return to the Ninth Circuit are anything but regular. Kozinski resigned last December after a string of female law clerks, and in one instance, a former judge on the U.S. Court of Federal Claims, accused Kozinski of sexual misconduct and harassment.
Kozinski has largely kept a low profile since then, as the federal judiciary undertook efforts to put in place reforms to prevent misconduct and make reporting it easier. Kozinski, however, posted a personal remembrance of former Ninth Circuit colleague Stephen Reinhardt, who died in March, to the Concurring Opinions blog in June and wrote about U.S. Supreme Court Justice Anthony Kennedy, for whom he clerked. The latter of those essays created a backlash as a group of 13 women lawyers wrote a letter to the editor criticizing the Daily Journal’s decision to run the essay without noting why Kozinski had left the bench.
According to the California State Bar website, Kozinski’s license status changed from “Judge” to “Active” on Dec. 19, 2017, the day after he retired. He’s listed as practicing at the Law Office of Alex Kozinski in Torrance, California.
Asked Friday by text message if he were available for comment on the case or his return to private practice, Kozinski responded: “No, thanx.”