The Federal Circuit's "Sharp Tongue" When It Comes To Bad Attorney Behavior

Published date07 December 2021
Subject MatterIntellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
Law FirmHaug Partners
AuthorMr Joseph Saphia and Jessica Zafonte

"Sticks and stones may break my bones ... but [sharp] words [from the Federal Circuit] will make me wish I never went to law school." The judges of the Federal Circuit understandably become frustrated when attorneys misrepresent facts, make frivolous arguments, and, of course, when they engage in fraudulent conduct. While the Federal Rules of Civil Procedure provide various ways for a Court to sanction attorneys for improper conduct, sometimes the Court prefers to just include a good, harsh scolding in its opinions. The effect is surely no different, as legal journals and blogs re-circulate and quote the Court's language for everyone in the profession to read. And, if the sharp-tongued rhetoric of the Court wasn't enough, sometimes it will award sanctions for good measure, on top of a scathing opinion.

Under Fed. R. Civ. P. 11(c), the Court "may impose an appropriate sanction" for a violation under 11(b), which provides that in presenting any paper to the Court, the attorney certifies that it is not brought for an improper purpose and is not frivolous. Fed. R. App. P. 46(c) further allows a court of appeals to discipline an attorney for "conduct unbecoming a member of the bar or for failure to comply with any court rule." The Patent and Trademark Office ("PTO") separately has its own Code of Professional Responsibility.1

The courts therefore have available "a variety of possible sanctions to impose for violations, such as striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs; ordering a fine payable to the court; referring the matter to disciplinary authorities."2 Rule 10 of the Model Rules for Lawyer Disciplinary Enforcement also lists the possible sanctions, including a "reprimand" published in the official reports for the guidance of other lawyers or an admonition served upon the attorney in question, but which need not be published or even identify the attorney.

Admonitions are considered the most lenient sanction that a court can give. However, some courts will issue a more informal admonition, by reprimanding the attorneys and/or parties in their opinions. The Federal Circuit judges are known for their concise and eloquent use of language, so it is no surprise that they are just as good with words when it comes to admonishing the attorneys who darken their door. Included here are some of the Federal Circuit's best zingers (some which were accompanied by sanctions, but many of which were not) in response to overzealous-to-the-point-of-unethical attorney conduct. Beware the wrath of an exasperated yet articulate judge.

Frivolous Claims and Proposed Claim Constructions

In Pac-Tec, Inc. v. Amerace Corp., the Federal Circuit considered'and was appalled by'the frivolity of claims made by plaintiff in seeking a declaration of noninfringement of defendant's patents covering snow-plowable pavement markers.3 In its opinion sanctioning declaratory judgment plaintiff under Fed. R. App. P. 38 and awarding patent-holder its fees and double costs, it seethed:

This signifies the end, we trust, of Pac-Tec's and its counsel's singularly sanctionable sojourn among the hallowed halls of justice. Throughout this litigation, the conduct of Pac-Tec and its counsel have fouled the judicial nest. Continued on this appeal is the pestiferous pestilence that led to a Rule 11 sanction, striking portions of Pac-Tec's post-trial pleading, imposition of attorney fees for willful infringement and dilatory litigation at the trial level, and imposition of sanctions by two appellate courts.

The appeal itself is frivolous, and its frivolity is unrelieved by even one of counsel's many arguments. Beyond frivolity, however, the conduct of counsel in this litigation infects the judicial process with a disabling disease of deceit that the courts must act to expunge, for if courts remain passive, that disease will spread until it destroys a judicial process and a legal profession no longer worth preserving.

Forgetting entirely the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT