In Re Violation of Rule 50

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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IN RE VIOLATION OF RULE 50
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Miscellaneous Docket No. 147
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Decided: April 24, 2013
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Before NEWMAN, PROST, and REYNA, Circuit Judges.
Newman, Circuit Judge.
Counsel for the appellant in Appeal No. 2011–1009
has informed the court of a violation of Federal Circuit
Rule 50. The panel has assigned a miscellaneous matter
number to the violation, and now fully considers the
infraction.
DISCUSSION
Rule 50 is the court’s rule governing conflicts of
interest pertaining to former court employees. In relevant
part, the Rule states:
No former employee of the court may participate or
assist, by representation, consultation, or otherwise, in
any case that was pending in the court during the period
of employment.
Our precedent is clear that Rule 50 must be strictly
followed. It serves “both to prevent the improper
subsequent use of information gained by a law clerk or
2 IN RE VIOLATION OF RULE 50
other employee while employed by the court, and to preserve
the image of the court as an institution free from any
doubt as to the propriety of actions taken by its former
employees.” In re Violation of Rule 50, 78 F.3d 574, 575
(Fed. Cir. 1996) (en banc). If an infraction is discovered,
the matter must be promptly and fully explained to the
court through sworn declarations to demonstrate that the
violation was “inadvertent and unintended,” id., after
which appropriate sanctions may ensue. Id. at 576.
The violation here involved a former law clerk
assisting on a matter that was pending during the clerk’s
employment. In particular, the former clerk, now an
attorney in private practice, provided advice surrounding
a response brief to a combined petition for rehearing. The
matter on which the former clerk provided advice was
pending during the clerk’s employment at the court.
Two days after the response brief was filed, the Rule
50 violation was brought to the court’s attention. Counsel
provided three sworn affidavits stating that the error was
“inadvertent” and explaining the circumstances. The
firm’s conflicts manager explained that the former clerk
submitted his Disqualification List, but the firm’s
conflicts team “innocently and inadvertently” failed to
identify the particular matter on the former clerk’s
conflicts report. The former clerk provided a sworn
statement that he had no recollection of the matter from
his time at the court, and relied on the conflicts staff for
his clearance. The responsible partner provided a sworn
statement that the former clerk “did not contribute in any
way to the text of the brief, either substantively or
typographically.”
A strong admonishment of the attorneys involved is
necessary. Former court employees must be vigilant and
use common sense to avoid conflicts such as this one.
Here, the appeal number alone should have raised a red
flag because it reflects the year of the former clerk’s
IN RE VIOLATION OF RULE 50 3
employment. Although we understand that the firm had
a procedure in place and generated a conflicts report to
avoid this circumstance, the procedure was obviously
flawed in its lack of redundancy. Practicing attorneys
rely on such reports at their own peril, and understand
that firm negligence may affect client outcomes when
there is an appearance of prejudice. We strongly urge
former employees to take responsibility to discover
conflicts beyond generalized conflicts reports. In this
case, minimal investigation was required to discover the
conflict.
We decline to levy sanctions because, once discovered,
the violation was promptly and properly handled, with
adequate assurances that no prejudice resulted.
However, we emphasize that this violation was
preventable and would not have occurred if appropriate
precautions were taken by the firm and the former law
clerk.