NOTE: This order is nonprecedential

United States Court of Appeals 

for the Federal Circuit ______________________ 

IN RE VIOLATION OF RULE 50

______________________ 

2018-9000 

______________________ 

Before DYK, CHEN, and HUGHES, Circuit Judges. 

PER CURIAM. 

O R D E R

Before the court’s standing panel on attorney misconduct is a reported violation of Federal Circuit Rule 50. 

We now consider the infraction. 

Rule 50 provides that “[n]o 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. 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,” after which appropriate 

disciplinary action may ensue. In re Violation of Rule 50, 

78 F.3d 574, 575–76 (Fed. Cir. 1996) (en banc). 

The violation reported here involves a former law 

clerk who recently left the court to work as an associate 

for a private law firm that practices frequently before this 

court. At the close of the clerkship, the former law clerk 
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received a list of all cases that had been pending during

his employment (“Appeals Pending List”). 

In compliance with the firm’s policies, the former 

clerk underwent ethics training and acknowledged in a 

signed statement that he was responsible for searching

his Appeals Pending List to determine whether any 

assignment would violate Rule 50. The former clerk

further provided a copy of the Appeals Pending List to the 

firm, which entered the cases into a searchable database. 

Soon after joining the firm, the former clerk was 

approached by a partner to review, and provide feedback 

on, a draft opening brief to be submitted in consolidated 

appeals that were (and remain) pending before this court. 

It appears that neither the former clerk, nor the partner, 

nor any other employee of the firm checked to see whether 

the appeals had been before this court during the former 

clerk’s employment. The former clerk accepted the assignment and billed 9.7 hours the next day. 

After the brief was filed, it occurred to the former 

clerk that “it was possible that the appeals had been 

docketed before [his] clerkship ended.” After checking his 

Appeals Pending List and discovering the violation, the 

former clerk was immediately removed from the case, and 

the law firm promptly informed the opposing party and 

this court of the Rule 50 violation. The opposing party did

not object to the filing of the brief in question or the law

firm’s continued representation during the appeals. 

The former clerk notes that he left the court within 

weeks of docketing of the case in question and that “[n]o 

appearances of counsel, certificates of interest, docketing 

statements, motions, merits briefs, or other substantive 

submissions were filed during [his] clerkship.” The former clerk adds that he was not aware of the case and did 

no work of any kind on the case during his clerkship. 
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While we do not impose discipline, we remind the 

former law clerk and the firm that they must be more 

vigilant in the future to avoid such violations. This

appears to be at least the second instance that a member 

of the law firm has notified this court of a Rule 50 violation. The law firm’s response appears to suggest that the 

burden of ensuring compliance with the rule rests almost 

exclusively on a former clerk, and that the firm fulfills its 

obligations by adopting a policy requiring compliance with 

Rule 50 and reminding the former clerk of his or her

obligations. This is not the case. Firms employing former 

clerks of this court have in their possession the information (the Appeals Pending List) necessary to ensure 

that former clerks do not work on matters from which 

they are barred from participating under Rule 50.* 

 

* We note that the Appeals Pending List is compiled 

from publicly available information. If needed, a supplemental list containing cases that are not public, such as 

sealed cases, is given to law clerks. There is no rule or 

policy that would prevent the former law clerk from 

providing public information to the former clerk’s new 

employer as was done in this case. In fact, the Committee 

on Codes of Conduct, authorized by the Judicial Conference of the United States, has published an advisory 

opinion (Advisory Opinion 109) stating that “[o]ne way to 

avoid future conflicts would be for the court to provide to 

the clerk upon departure a list disclosing only publicly 

available information about pending cases” and notes that 

“[s]uch a list would not run afoul of Canon 3D’s prohibition on disclosing confidential information.” Indeed, the 

court expects that the Appeals Pending List containing 

public information will be provided to future employers by 

the former law clerk. Any supplemental list must be kept 

by the former law clerk, and the former law clerk is solely 

responsible for checking that list. Similarly, if an Appeals 

Pending List contains a notification that it includes a 
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Firms, moreover, have their own obligation to ensure that

a former clerk does not work on cases that were before 

this court during the time of his or her employment. The 

court expects that firms in assigning work to former 

clerks will utilize the available information to ensure that 

work assigned to former clerks does not fall into the 

prohibited category. Because other firms may benefit from 

this guidance, the panel has decided to issue a public 

order in hopes of preventing similar violations in the 

future. 

 FOR THE COURT

February 15, 2018 /s/ Peter R. Marksteiner

 Date Peter R. Marksteiner

Clerk of Court

 

sealed case, the law clerk should redact that item before 

giving the list to an employer.