           NOTE: This order is nonprecedential


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

           IN RE VIOLATION OF RULE 50
               ______________________

                       2018-9000
                 ______________________
     Before DYK, CHEN, and HUGHES, Circuit Judges.
PER CURIAM.
                        ORDER
   Before the court’s standing panel on attorney miscon-
duct is a reported violation of Federal Circuit Rule 50.
We now consider the infraction.
    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 infraction 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.3d 574, 575–76 (Fed. Cir. 1996) (en banc).
    The violation reported here involves a former law
clerk who recently 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
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received a list of all cases that had been pending during
his employment (“Appeals Pending List”).
    In compliance with the firm’s policies, the former
clerk underwent ethics training and acknowledged in a
signed statement that he was responsible for searching
his Appeals Pending List to determine whether any
assignment would violate Rule 50. The former clerk
further provided a copy of the Appeals Pending List to the
firm, which entered the cases into a searchable database.
    Soon after joining the firm, the former clerk was
approached by a partner to review, and provide feedback
on, a draft opening brief to be submitted in consolidated
appeals that were (and remain) pending before this court.
It appears that neither the former clerk, nor the partner,
nor any other employee of the firm checked to see whether
the appeals had been before this court during the former
clerk’s employment. The former clerk accepted the as-
signment and billed 9.7 hours the next day.
    After the brief was filed, it occurred to the former
clerk that “it was possible that the appeals had been
docketed before [his] clerkship ended.” After checking his
Appeals Pending List and discovering the violation, the
former clerk was immediately removed from the case, and
the law firm promptly informed the opposing party and
this court of the Rule 50 violation. The opposing party did
not object to the filing of the brief in question or the law
firm’s continued representation during the appeals.
    The former clerk notes that he left the court within
weeks of docketing of the case in question and that “[n]o
appearances of counsel, certificates of interest, docketing
statements, motions, merits briefs, or other substantive
submissions were filed during [his] clerkship.” The for-
mer clerk adds that he was not aware of the case and did
no work of any kind on the case during his clerkship.
 18-9000                                                  3



    While we do not impose discipline, we remind the
former law clerk and the firm that they must be more
vigilant in the future to avoid such violations. This
appears to be at least the second instance that a member
of the law firm has notified this court of a Rule 50 viola-
tion. The law firm’s response appears to suggest that the
burden of ensuring compliance with the rule rests almost
exclusively on a former clerk, and that the firm fulfills its
obligations by adopting a policy requiring compliance with
Rule 50 and reminding the former clerk of his or her
obligations. This is not the case. Firms 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 Rule 50. *


    * We note that the Appeals Pending List is compiled
from publicly available information. If needed, a supple-
mental list containing cases that are not public, such as
sealed cases, is given to law clerks. There is no rule or
policy that would prevent the former law clerk from
providing public information to the former clerk’s new
employer as was done in this case. In fact, the Committee
on Codes of Conduct, authorized by the Judicial Confer-
ence of the United States, has published an advisory
opinion (Advisory Opinion 109) stating that “[o]ne way to
avoid future conflicts would be for the court to provide to
the clerk upon departure a list disclosing only publicly
available information about pending cases” and notes that
“[s]uch a list would not run afoul of Canon 3D’s prohibi-
tion on disclosing confidential information.” Indeed, the
court expects that the Appeals Pending List containing
public information will be provided to future employers by
the former law clerk. Any supplemental list must be kept
by the former law clerk, and the former law clerk is solely
responsible for checking that list. Similarly, if an Appeals
Pending List contains a notification that it includes a
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Firms, moreover, 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. The
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. Because other firms may benefit from
this guidance, the panel has decided to issue a public
order in hopes of preventing similar violations in the
future.


                                 FOR THE COURT

February 15, 2018                 /s/ Peter R. Marksteiner
     Date                         Peter R. Marksteiner
                                  Clerk of Court




sealed case, the law clerk should redact that item before
giving the list to an employer.
