To Sir, With Love

At Hercules and the Umpire, Judge Kopf raises the peculiar and sad story of Randall Rader, formerly Chief Judge of the Federal Circuit, after some self-promoting snitch at Weil Gotshal used a personal email from the court to market himself.  The WSJ summarizes the nastiness:

The judge sent the email in March to Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP in Silicon Valley. The email, which was reviewed by The Wall Street Journal, described a recent conversation in which another judge purportedly told Judge Rader that Mr. Reines was “IMPRESSIVE in every way.” In the email, Judge Rader said: “I was really proud to be your friend,” and encouraged Mr. Reines “to let others see this message.” He signed the note “Your friend for life, rrr.”

Neither knowing Judge Rader nor having any interest in the federal circuit whatsoever, this news didn’t warrant a moment’s thought the first time ’round.  And the “Your friend for life” part was just kinda creepy, more in keeping with a junior high crush than a missive from a judge.  Without knowing Judge Rader, I can’t begin to explain why those words were chosen. BFFs?  Not right. But as it happens, Judge Kopf’s spotlight on an aspect of this email warrants greater thought:

This is my sense of what motivated Judge Radar to write his overly effusive, but plainly improper, e-mail. His head was empty but I trust his heart was pure. That is not an excuse, but the judge’s effort to reach out to a member of the bar who apparently did excellent work does put a finer point on the judge’s conduct. A judge being appreciative of fine legal work and expressing that appreciation appropriately, and in the proper forum, is laudable.

There are channels, some up front and some behind, where communications are sent from judge to lawyer.  Sometimes, a law clerk will tap you on the shoulder to whisper something in your ear. Sometimes, an opinion will offer a kind word. Sometimes, it will be a benchslap.  There are the occasional handwritten notes and, yes, even an email.

There are three points that need to be made about these extrajudicial ex parte communications.  First, if they relate to a pending matter and express information that could impact the outcome, they are wrong.  They are no less wrong because it’s one side or the other. The judge has a duty not to do so. So too does the lawyer.

Second, as lawyers grow up, some become judges. Others continue to practice law, and eventually wind up before those judges.  Sometimes they were friends before. Sometimes they weren’t friends at all. Sometimes, they hated each other’s guts. But if they have a shred of integrity, they put their personal feelings aside while they do their job.  Love ’em or hate ’em, they are now just another judge and lawyer.  It neither means you win nor lose.  You do your job and so does the judge.  Perhaps you will get that slight head shrug, as if to say, “sorry, pal, but hey, that’s how it goes,” but you never expect that any personal relationship will influence the outcome.  And if a judge can’t manage to separate personal feelings, whether love, hate or anything in between, then he needs to recognize it and recuse himself.

Third, judges are human, with all the good and bad that comes with it.  They have foibles. They can be wrong.  They can be blinded by their bias, or unaware that they have any bias at all.  Same with lawyers, but since they don’t get to decide matters, nobody cares.  A lawyer with foibles is just a lousy lawyer. A judge who can’t separate his feelings from his thinking is a danger and blight on the system. So lawyers and judges can joke around. They can, under appropriate circumstances, behave like friends toward each other, have a beer, chat, or not.

There was a judge with whom I would cross paths fairly regularly, who hated my guts. We used to stand next to each other at cocktail parties, back to back so no one would see us facing each other, and talk.  It was comical. The occasional note comes from a judge, sometimes by email but more often handwritten, saying something helpful, kind or interesting.

These aren’t notes about cases pending before the court, though they may on occasion refer to cases concluded or issues the judge may well confront again.  But they are not sent for any nefarious purpose or in violation of any ethical proscription.  They’re just normal, human interaction where one of the people happens to be a judge in their day job. Even so, being a judge is not the same as being the regional manager for Dairy Queen, and so any communication can be construed to suggest something nefarious.

A while back, Judge Kopf wrote about his warm feelings toward the former law enforcement officers who now serve as court security officers. I asked whether his feelings might bias him in favor of law enforcement.  He responded that they did not. That was that, as far as I was concerned. Fair question. Fair answer. End of discussion. Yet, one of Judge Kopf’s nutjobs (see, we all have them) saw it as defense lawyer paranoia.

There’s no avoiding someone seeing something improper when it comes to judges. I have neither fear nor concern about a judge showing a little humanity.  The issue isn’t whether they’re human and do things that lesser humans do. The issue is whether they let their personal feelings overcome their discretion. On the other hand, I have a great deal of fear and concern about a judge who shows no humanity.

As for Judge Rader, it seems he could have announced that he would recuse himself from any cases involving the IMPRESSIVE Edward Reines, and that would have been sufficient to end any concerns. Though, the “Your friend for life” thing is still creepy.  As for Reines, his disclosure of the email, and use of it to show others how cool he is, was a major dick move.  There’s nothing he can do to cleanse himself of that taint.

7 thoughts on “To Sir, With Love

  1. Richard G. Kopf

    SHG,

    I agree with virtually everything you have written.

    But, I have a reminder. You have previously referred to me (or more accurately) what I have written as “awkward.” I understood (and so did everybody else) what you meant. Essentially, a little creepy and a little sad.

    In the end, Judge Radar, you and me are all like that, that is “awkward.” Most really good lawyers (you for example) are able to hide that trait. As a kid, I tried to hide it (and as a lawyer too) by sometimes inviting fist fights. No, goddamn it, I am not “awkward” I will put your fucking teeth through your lip. It didn’t work (often because I found myself on the ground) or, when I was a lawyer, finding that my opponent whipped me good in the courtroom despite by my huffing and puffing.

    Anyway, Radar’s case is sad in the same way Sartre described our sad world. We are all in a boat alone in a vast ocean. I don’t like that image (or Sartre) so I suppose I rail against it.

    AWKWARD.

    All the best.

    RGK

    1. SHG Post author

      I could feel the breeze from behind on that one, Judge. We’re all awkward, whether unintentionally or because our “friendly” or “funny” is another person’s awkward. You can’t please ’em all, and it’s not worth the effort to try.

      But on one point, I beg to differ: If I’m awkward, it reflects only on some jerk lawyer from New York. And if I fight back and get whupped, it won’t make the WSJ. As much as I think I’m kinda important around my house (though my kids would dispute this), nobody else thinks so. As awkward as I may be, nobody really gives a hoot.

      Judges, on the other hand, make the paper. It doesn’t make them less human, but it makes the awkward more public.

    1. william doriss

      I luv it when you, Judge, and SHG go at it. It makes my day.
      Surely this “rrr” e-mail was inappropriate; that is understood.
      No argument!
      Freedom of Speech is not necessarily free when it gives all the
      appearances of,… well, you know?
      It’s difficult being a judge, and more difficult being on the
      receiving end, if you catch my drift? A nasty job. Why would
      anyone enter this line of work? Inquiring Minds!
      Hopefully, we can move on. Tomorrow is another day. No
      great “harm” done, IMO. On the other hand,…
      Thank God, we did not lose BarleyCorn, below,… or was he
      removed (for incontinence)? (I’m not stewpid. I pay attention. Ha.)
      Keep posting, Judge Kopf. We luv ya. It is a “fee country”, so they
      say.

  2. UltravioletAdmin

    I’ve met Judge Rader, and he struck me as a man of integrity. He made a mistake here, but his acts show that strong integrity in dealing with the mistake. We can always use more of that on the bench.

    1. SHG Post author

      I’ve met Judge Rader, and he struck me as a man of integrity.

      Is that the test? Not saying he isn’t, but seriously?

  3. John Barleycorn

    If it weren’t for cynical doubt I would be reasonably certain most of you legal-guided ones predominately made up your own nursery rhymes as kids while failing to absorb the true classics.

    However, it could be most of you did absorb the true classics and being left unsatisfied decided to make up some of your own as well, to further define and manipulate the world around you to make sense of it.

    Either way you are an awkward bunch.

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