The US Court of Appeals for the Federal Circuit decided not to impose sanctions for violation of its COVID-19 restrictions on the number of counsel permitted to attend oral argument, citing the involved lawyers’ “earnest remorse.” In re Violation of the Revised Protocols for In-Person Arguments and Related Order, Case No. 22-9000 (Fed. Cir. Feb. 25, 2022) (per curiam).
When the Federal Circuit reopened for in-person oral arguments in September 2021, it continued to restrict public access to the National Courts Building and set out strict protocols governing appearances at oral argument. Under those protocols, only arguing counsel and up to one additional attendee whose presence was necessary to assist or supervise the arguing counsel could attend. All persons entering the building had to sign a form certifying that they were either arguing counsel or assisting or supervising arguing counsel. Arguing counsel had to sign an additional form taking personal responsibility for ensuring that all individuals attending argument with the arguing counsel had read and would comply with the COVID-19 protocols.
Several senior lawyers from one law firm wanted to attend a junior colleague’s oral argument. The junior lawyer moved for permission for two lawyers and two other individuals to attend the oral argument in addition to arguing counsel and the one permitted assistant/supervisor. The Federal Circuit denied the motion. Nonetheless, on the day of argument, four lawyers (each carrying the required form) went to the courthouse and entered the assigned courtroom. The two non-arguing, non-assisting/supervising lawyers sat in the back corner of the courtroom until they were summoned to the front by a deputy clerk and told to leave the courtroom. The lawyers returned to the lobby area and were subsequently escorted out of the building.
The matter was referred to the Federal Circuit’s standing panel on attorney discipline, which ordered all four lawyers to show cause why they should not be sanctioned. The lawyers stated that they had gone to the courthouse notwithstanding the denial of their motion for leave to attend the hearing merely to seek clarification on any potential changed circumstances that might permit their attendance. They also argued that the Court’s COVID-19 restrictions were ambiguous. Finally, they expressed remorse for having violated the rules.
The Federal Circuit criticized the lawyers for trying to attend the oral argument even though their motion for leave to attend was denied. The Court noted that the lawyers might have sought clarification or reconsideration of the denial in writing but stated that it was inappropriate for the lawyers to have sought such clarification or reconsideration in person at the time of the hearing. The Court also called the lawyers’ argument that the protocols were ambiguous “wholly without merit.” Nonetheless, on a finding that the lawyers’ remorse was earnest, the Court decided not to impose sanctions.
Practice Note: Anyone might make an occasional error in judgment. While remorse does not undo such an error, it can at least help prevent sanctions from being imposed. Then again, the Federal Circuit has now laid down a marker in this precedential order and is unlikely to be as lenient with a subsequent violator. Counsel beware.