The Volokh Conspiracy

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

From the Federal Circuit, an opinion related to its COVID protocols; as it happens, the violators here did get forgiveness (at least in the absence of sanctions), but the court seems clear that future violations won't be treated the same way.


From last week's decision of the Federal Circuit (Judges Timothy Dyk, Evan Wallach, and Kara Stoll) in In re Violation of Revised Protocols for In-Person Arguments:

Under the in-person [COVID-related] argument protocols in effect during the events here, "[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel (e.g., a client, lawyer sitting second chair, or paralegal)" [and who were both either vaccinated or had just gotten a negative test result] were "permitted access to the National Courts Building and the courtroom." …

Respondents are two partners and a special counsel at the same law firm that represented a party in an appeal before this court. A few days before the scheduled in-person argument, Respondents filed a motion seeking leave of court for two of the Respondents as well as two other individuals to attend in addition to arguing counsel (also a Respondent) and the one person authorized to be in the building and the courtroom who was necessary to assist or supervise arguing counsel. The proposed attendees were named in the motion. The motion was forwarded to the merits panel on the appeal for consideration. The panel denied that motion without further elaboration.

After receiving the order rejecting the request for additional attendees, Respondents decided that when one of the Respondent partners argued, an associate would be the one official attendee allowed to assist the arguing partner during the argument. Though they received the order denying their request to enter the building and attend argument only two days prior to argument, the responses state that Respondents nonetheless "determined that [the special counsel and the non-arguing partner] could go to the Court, identify who they were, and ask if they could attend, if circumstances had changed." The responses explain that "[t]hey were hoping … that the panel would let them attend."

On the day of argument, all four attorneys, each in possession of a signed Form 33C, proceeded together through the security gate at the entrance to the National Courts Building. After passing through security, the Respondents took an elevator to the second floor where the courtroom was located and entered the assigned courtroom. After entering the courtroom, special counsel and the non-arguing partner took a seat in a back corner of the courtroom and were shortly thereafter summoned to the front of the courtroom by one of the court's deputy clerks. The deputy clerk informed the special counsel and the non-arguing partner that they could not be in the courtroom, and both returned to the lobby area. 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…. Most troubling is Respondents' decision to come together in person to the National Courts Building after this court had just denied their motion for additional attendees only two days earlier. The suggestion that the Revised Protocols or court order permitted in-person attendance to orally request permission and clarification of the court's order denying such permission is not reasonable. The court's Revised Protocols and the panel's order limited the number of attendees in the building and courtroom.

Respondents' decision to violate these orders by entering the building and courtroom for purpose of seeking permission to violate the orders is not reasonable. Given the Revised Protocols and express denial of their motion by the court, it was incumbent on Respondents to file a written motion for reconsideration or clarification rather than simply show up at the courthouse in violation of the protocols to again seek permission to attend argument.

Any contention that court staff somehow authorized entry is irrelevant. Court staff, including court security officers, cannot override a court order. For these reasons, we conclude that the Revised Protocols and the order were violated by Respondents, and there was no ambiguity in those instructions.

Despite these violations, because Respondents express earnest remorse, have not previously been accused of misconduct, and because this situation has not arisen before, we have decided not to impose sanctions. However, the bar is on notice that this court takes compliance with these protocols very seriously and that sanctions will likely be imposed if a future violation of the protocols takes place. We have said that for this court "to get its work done," it "must insist on strict compliance with its rules." That sentiment applies with particular force to our instructions governing in-person arguments while the court and the bar continue to navigate the COVID-19 pandemic given the health and safety implications.