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sEP 2 7 2016
PETER R. MARKsTElNER

CLERK
NOTE: This order is nonprecedential

United States Court of Appeals
for the Federal Circuit

 

IN RE V'IOLATION OF RULE 50,
Responden.t

 

20 18-9001

 

Before DYK, CHEN, and HUGHES, Circuit Judges.
PER CURIAM.
0 R D E R

Before the court’s standing panel on attorney miscon-
duct is yet another reported violation of Federal Circuit
Rule 50. We now consider the infraction

BACKGROUND

The violation reported here involves a former law
clerk who 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 clerk
received a list of all cases that had been pending during
her employment (“Appeals Pending List") in an Excel
spreadsheet that included each case’s associated appeal
number, appeal caption, the originating district court, and
the distrth court’s corresponding docket number. l

According to the law firm’s declaration, prior to join-
ing the iirm, the former law clerk provided the firm with
her Appeals Pending List. The declaration further states
that upon joining the fi.rm, all matters that were before

10

2018-9001

the Federal Circuit during the former law clerk’s clerk-
ship in which the firm represented a party were identified
during the firm’s Rule 50 compliance process.

One year after the end of the clerkship, this court
issued a decision vacating the judgment in a case that had
been docketed shortly before the former law clerk left the
court to join the law firm, and remanded to the district
court for further proceedings While the law firm was not
previously involved in the case, it was engaged to repre-
sent one of the parties in the remand proceedings a few
years aRer the clerkship ended.

According to the firm’s declaration, “[h]aving received
no ethical wall notice, and it being a district court case,”
the former law clerk “did not immediately appreciate that
the matter could implicate her Rule 50 obligations.” The
district court granted the former law clerk’s motion to
appear, and the former law clerk assisted in the case,
“Which involved principally legal research.”

The firm states that after subsequently realizing that
the case had been before this court during her clerkship,
the former law clerk “immediately notified her supervis-
ing attorney and attorneys in” the iirm’s Ofiice of General
Counsel, and ceased all work on the matter. The firm
promptly notified this court of the Rule 50 violation, and
the former law clerk withdrew from the case,

The firm states that the Rule 50 violation was “inad-
vertent and unintentional” and that “[t]he firm and [the
former law clerk] sincerely regret this oversight and have
taken steps to assure it will not occur in the future." The
firm notes that the former law clerk’s judge was not
assigned to the case in question, the former law clerk did
not work on the case at the Federal Circuit,| and based on
the short time between the docketing of the case and the
time she left the court, she “is 100% confident that she
never saw any of the briefs, heard about or discussed the

2018-9001 3

appeal with anyone, or had any other involvement, direct-
ly or indirectly, with the case while at the Court.”

DISCUSSION

Rule 50 provides that “[n]o former employee of the
court may participate or assist, by representation, consul.
tation, 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 infrac-
tion is discovered, the matter must be promptly and fully
explained to the court through sworn declarations to
demonstrate that the violation was “inadvertent and
unintended,” after which appropriate disciplinary action
may ensue. In re Violation of Rule 50, 78 F.Bd 574, 575-
76 (Fed. Cir. 1996) (en banc).

As we recently explained, “[f]irms employing former
clerks of this court have in their possession the infor-
mation (the Appeals Pending List) necessary to ensure
that former clerks do not work on matters from which
they are barred from participating under Ru]e 50,” and
this 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.” In. re Violation of Rule 50, 712 F.
App’x 1005, 1006-07 (Fed. Cir. 2018).

The fact that the former law clerk provided her Ap-
peals Pending List to the firm at the start of her employ-
ment and yet she failed to receive an ethical wall notice is
proof of the tirm’s negligence While the E.rm had a Rule
50 compliance process in place that apparently accounted
for cases that the firm was involved in during her clerk-
ship, the process is flaws in its failure to screen for
conflicts that may arise en the irm enters a case
following an appeal, conflicts that the firm would have
been alerted to if it had simply screened the former law
clerk from working on matters associated with all of the

4 2018-9001

appeal numbers and district court docket numbers pro»
vided by this court in the Appeal Pending List.

We do not impose discipline here because this is the
former law clerk’s and the firm’s irst violation, it is clear
that no prejudice or harm resulted from the infraction,
the former law clerk did not work on the case while at the
court, nothing of substantive was even filed at the court
during her clerkship, and because once discovered the
violation was promptly and properly handled. However,
given our repeatedly reminders that “[f]ormer court
employees must be vigilant and use common sense to
avoid conflicts,” In re Violation of Rule 50, 502 F. App’x
981, 982 (Fed. Cir. 2013), and that firms have “their own
obligation to ensure that a former clerk does not work on
cases that were before this court during the time of his or
her employment,” In re Violation of Rule 50, 712 F. App’x
at 1006-07, we emphasize that discipline may be imposed
on similar Rule 50 violations in the future.

FoR THE CoUR'r
/s/ Peter R. Marksteiner

Peter R. Marksteiner
Clerk of Court

