Maybe Easier to Get Forgiveness Than Permission — but Harder If You’ve Expressly Been Denied Permission

In this article, you will find the Federal Circuit’s last week decision (Judges Timothy Dyk and Evan Wallach) Re Violations of Revised Protocols For In-Person Arguments:

The in-person [COVID-related]Argument protocols that were in place during these events,[o]There will be only one arguing lawyer and no other person who can assist or supervise the arguing attorney (e.g., client, lawyer in second chair or paralegal). [and who were both either vaccinated or had just gotten a negative test result]They were allowed access to the National Courts Building, and the courtroom. …

Two partners and one special counsel are the Respondents. They were both part of the same law company that represented a defendant in an appeal before this Court. Two days prior to the in-person argument was scheduled, the Respondents filed an application for leave of court. This motion included two Respondents and two additional individuals. In the motion, were identified all proposed participants. This motion was forwarded on to the merits panel for review. Without further explanation, the panel rejected that motion.

Respondents rejected the request to add more attendees. Respondents then decided that an associate was allowed to attend argument with one of Respondent partners. Although they were denied entry to the building to attend argument two days before, Respondents stated that the decision was made by them. [the special counsel and the non-arguing partner]They could also go to Court and identify their identity, then ask permission to be present if the circumstances have changed. These responses explained that[t]hey were hoping … that the panel would let them attend.”

The day of argument saw all four attorneys in possession of signed Form 33C and proceeded through security at the National Courts Building. The Respondents walked through security and took the elevator to the second level where they found the courtroom. They then entered their assigned courtroom. One of the court’s assistant clerks summoned the special counsel and non-arguing partners to take a seat at the back of the courtroom. Both the special counsel, as well as the non-arguing spouse were informed by the deputy clerk that they couldn’t be present in the courtroom. They then returned to the lobby. The special counsel and the non-arguing partner were subsequently told that they were not permitted in the building and escorted out…. [T]he court’s standing panel on attorney discipline … ordered the Respondents to show cause as to why their actions did not warrant discipline for violating the Revised Protocols and the order denying the motion for additional attendees….

[T]he fact that the arguing partner was accompanied by the special counsel and the non-arguing partner clearly violated the Revised Protocols…. The most troubling aspect is the Respondents decision to meet in person at the National Courts Building, despite this court having denied them their request for additional participants two days prior. This suggestion that Revised Protocols allowed for in-person attendance is ridiculous. Revised Protocols by the court as well as the panel’s orders have limited attendance to the courtroom.

It is absurd that Respondents entered the building and courtroom to try to get permission to breach these orders. Due to the Revised Protocols, and the express refusal of their motion by court, Respondents were required to file a written request for clarification or reconsideration rather than just showing up at courthouse violating the protocol to seek permission to hear argument again.

It is not possible to claim that the court staff authorized entry. A court order cannot be overridden by court staff or court security officers. We conclude that Respondents violated the Revised Protocols as well as the order. There was also no ambiguity within those instructions.

We are not going to impose any sanctions, despite Respondents expressing sincere regret and not being accused of misconduct in the past. But, we are advising that the court will likely impose sanctions if there is another violation of these protocols. This court must strictly follow its rules in order to do its job. We’ve stated that it is essential for “to get its work done”. This sentiment is especially true for our in-person arguments, while both the court and bar navigate the COVID-19 epidemic given its safety and health implications.