N OTE : This order is nonprecedential



# United States **Court of Appeals** 
**for the Federal Circuit**

______________________

IN RE VIOLATION OF R ULE 50

______________________

2018

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______________________ Before D YK

, C HEN

, and H UGHES

, Circuit Judges

.

P ER C URIAM

.
O R D E R

Before the court’s standing panel on attorney misco nduct 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, consu ltation, 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 wa s “inadvertent and unintended,” after which appropri ate disciplinary action may ensue. In re Viola tion of Rule 50

, 78 F.3d 574, 57 5–7 6 (Fed. Cir. 1996) (en banc).

The violation reported h ere 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 clerk18

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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 s tatement that he was responsible for search ing

his Appeals Pending List to determine whether any assignment w ould 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 part ner to review, and provide feedba ck on, a draft opening brief to be submitted in consolidated

ap peals that were ( and remain ) pen ding before this court

. It appears that n either the former clerk

, nor the partner

, nor any other employee of the firm check ed to see whet her the appeals had been before this court during the former clerk’s employment. The former clerk accepted the a ssignment 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] cle rkship ended.” After checking his Appeals Pendin g List and dis covering the violation, the

former clerk was immediately rem oved from the case , and

t he law firm promptly informed the opposing party and this court of the Rule 50 violation. The oppos ing party did not object to the filing of the brief in question or the law firm’s continued representa tion dur ing the appeal s

.
The former clerk notes that he left the court within

weeks of docket ing of the case in question and that “ [n] o appearances of counsel, certificates of interest, docketing

statements, motions, merits briefs, or other substantive

submission s were filed during [his] clerk ship.” The fo rmer clerk adds that he was not aware of the case and did no work of any kind on the case during his clerk ship.18

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While we do not impose discipline, we rem ind the

former law clerk and the firm that t he y 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 th is court of a Rule 50 viol ation. The law firm ’s res ponse appears to suggest that the burden of ensuring compliance with the rule rests almost exclusively on a former clerk, and that the firm fulfil l s its obligations by adopting a policy requiring compliance with Rule 50 and reminding the former clerk of hi s or her obligations. This is not the case. Firms employing former

cl erks of this court have in their possession the info rmation (the Appeals Pending List) necessary to ensure

that former clerks do no t work on matters from wh ich they are barred from participating under Rule 50. *

* We note that the Appeals Pending List is compiled from publicly available information

. If needed, a suppl emental 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 Confe rence 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 Can on 3D’s prohib ition 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 for mer 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 a18

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Firms, moreover, have their own obligation to ensure that

a former clerk do es 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

th is guidance, the panel has decided to issue a public order in hopes of pr eventing similar violations in the

future.

F OR THE C OURT

Fe bruary 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

.