Are You Serious, Judge?”

A reciprocal public censure for misconduct in an oral argument before the United States Court of Appeals for the Second Circuit has been ordered by the New York Appellate Division for the Second Judicial Department

The respondent represented Robert Doyle, the appellant in that matter. On December 11, 2019, in response to a question posed by Second Circuit Judge Denny Chin regarding the injury suffered by Doyle, the respondent stated twice, “Are you serious, Judge?” and then commented, “I see that you read the briefs thoroughly.” After opposing counsel presented his argument, the respondent attempted to make a rebuttal, but was told by the circuit judges that he had waived rebuttal. The respondent then disrupted the proceeding by failing to be seated, and a circuit judge directed a court security officer to escort him out of the courtroom. After the respondent was removed from the courtroom, he was loud and argumentative towards the court security officer and failed to comply with the officer’s instruction to enter an elevator until the officer escorted him.

In a letter to the Second Circuit, he attributed his comments to “understandable frustration”

The respondent claimed that, over the past 20 years, he had observed “comments and questions from the bench that could be described as ‘disrespectful,’ ‘discourteous,’ and ‘inappropriate.’” In his view, there was a “double standard that those who appear before the Court are loath to violate for fear that the judges  will take their personal feelings into account when making their rulings, whereas judicial integrity requires (indeed, [is] partly defined by) the opposite.”

The Second Circuit imposed a reprimand

In mitigation, the Second Circuit considered that the respondent had no disciplinary history, and most importantly, that the respondent, in his declaration, accepted responsibility, and expressed remorse, shame, and profound sorrow for his misconduct. The Second Circuit noted that the respondent’s post-argument letter “may not have much mitigation value” (id. at 119), but hoped that after a longer period of reflection, his declaration more accurately reflected his understanding of his conduct.

The Second Department ordered a censure. (Mike Frisch)