Denny Chin Second Circuit Judge Denny Chin. Credit: David Handschu / ALM

A New York lawyer said he has no regrets about being escorted by security from a federal appeals hearing Wednesday, after a judge on the panel admonished him for "discourteous" and "inappropriate" behavior.

The astonishing audio of the hearing in the U.S. Court of Appeals for the Second Circuit quickly made the rounds on social media, where appellate lawyers appeared stunned—and captivated—by the rare turn of events and shared their own observations of court hearings that, to be sure, did not go as planned.

The hearing started with solo attorney Todd Bank telling the appellate panel he had nothing new to add beyond what he wrote in his briefs. He said he assumed the panel was familiar with the record, and he asked whether anyone had questions for him.

The case before Judges Denny Chin, Barrington Parker and Robert Sack involved an attorney's challenge to a local rule for the Eastern District of New York bar that requires applicants to get a sponsoring affidavit from another attorney that outlines what they know about the applicant's character and legal experience.

Chin asked about the alleged harm to the lawyer challenging the affidavit, drawing an assertion from Bank that the judge's remarks had "nothing to do with this case." The hearing quickly went downhill for Bank after Chin pressed the lawyer to articulate what the alleged injury was—essentially, why he's in court in the first place.

"Are you serious judge? With all due respect, I don't know what to say," Bank said.

Chin responded: "You know what, I withdraw my question. You can sit down."

"OK, well, thank you. Thank you very much judge. I see that you read the briefs thoroughly," Bank said.

Chin asserted: "Listen, you know, you are acting inappropriately—you are acting inappropriately. Well, well, you are acting in a disrespectful and discourteous manner, and that's not appropriate."

The judges then turned to Assistant U.S. Attorney Matthew Modafferi, who rested on the arguments in the briefs. The hearing appeared to be ending just minutes after it started.

But Bank said he wanted rebuttal time. The Second Circuit panel wasn't having it, and Chin and a second judge told Bank he had "waived" rebuttal and was excused. Parker then asked that Bank be removed from the court, and he was again told to leave.

Listen to the audio of the hearing here:

In an interview hours after the hearing, Bank said he could have been more cordial, but he didn't regret his comments to Chin.

"Judge Chin's point—it certainly indicates he didn't know what the case was about," Bank said. "Ninety percent of the case was what [my client] objected to, rightly or wrongly: The steps he would have to go through to even get the affidavit."

Bank graduated from Brooklyn Law School and was admitted to the New York bar in 1997. Bank has gotten some press attention over the years as New York's "annoyance" lawyer, stemming from his focus on pursuing Telephone Consumer Protection Act litigation and other claims.

Bank said he's never been removed from a court before during his nearly 20 years of practice. He said he generally appears at the Second Circuit to argue two to three times a year.

Both sides were given 10 minutes for oral arguments Wednesday, but the hearing lasted about 3 minutes and 30 seconds.

" It's certainly not something I was planning ahead of time," Bank said in the interview. "I think I was understandably very frustrated—when the opening comment from the bench clearly shows, at least from where I was standing, figuratively speaking, that at least one judge didn't know what the case was about or didn't care. … I assume he didn't know."

Chin, who has served on the Second Circuit since 2010, was not immediately reached for comment Thursday morning.

Bank said he spoke with security as he left the courthouse, who told him he was not in trouble or under arrest. He said he doesn't expect any sort of discipline to follow the episode.

"I'm not aware of any law I broke. They kicked me out of the courtroom. I left," Bank said. "Whether they had a right, I'm not sure. I wasn't being a continuing threat."

 

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Mike Scarcella contributed reporting.