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DC Bar refuses to investigate attorney misconduct in Leader v. Facebook

Unwillingness of DC attorneys to self-police may explain why Washington is broken

By Contributing Writers | Americans For Innovation | Dec. 30, 2012

<<< Return to "A Cocksure Facebook?"

DC Bar logo
(Dec. 30, 2012)—AFI has just obtained a copy of a new letter from the DC Bar, the second largest bar association in the United States. The letter replies to Dr. Lakshmi Arunachalam regarding attorney and judicial misconduct in the Leader v. Facebook patent infringement case set for conference at the U.S. Supreme Court on Jan. 4, 2013. See "Prominent Americans speak out for Leader Technologies." Dec. 6, 2012.

On Dec. 20, 2012, the DC Bar Counsel sent a letter (also embedded below) to inventor rights activist Dr. Lakshmi Arunachalam absolving the DC Bar of any responsibility to report judicial and judicial employee misconduct to the proper legal authorities. Dr. Arunachalam holds numerous Internet patents and is the former Director of Network Architecture for Sun Microsystems. Dr. Arunachalam responded with a primer on attorney and judicial ethics.

Has DC attorney patronage replaced the rule of law?

The Patronage Flag of the United States
Pundits say Washington is broken. This DC Bar conduct appears to be another example validating the brokenness—exhibited by DC lawyers unable and unwilling to do their duties as legal practitioners, as politicians, and as bureaucrats. Has attorney patronage replaced the rule of law in DC?

The DC Bar changed its story

The DC Bar’s first response to Dr. Arunachalam on Nov. 1, 2012 said that Federal Circuit Clerk of Court Jan Horbaly was the only Federal Circuit attorney who was not licensed in DC. This second letter implies that none of the Federal Circuit judges in the complaint are licensed in the District of Columbia. Let's be clear, the Federal Circuit attorneys and judges work within a block of the White House in downtown Washington D.C. None of them are licensed in D.C.?!

The DC Bar sidestepped Dr. A’s main point that the DC Bar Rules of Professional Conduct “requires that members of the profession initiate disciplinary investigation” when they have knowledge of a violation. The Rules also dictate that “A lawyer who knows that a judge has committed a violation . . . shall inform the appropriate authority.” R.Prof. Conduct Rule 8.3.

Instead, the DC Bar continued to quote the other disciplinary procedure for judicial misconduct that points complainants to “The Circuit Executive,” which in this case is Clerk of Court Jan Horbaly—one of the attorneys being complained about.

Federal Circuit a legal technocracy?

By refusing to follow the Rules of Professional Conduct, the DC Bar essentially proclaims the Federal Circuit a legal technocracy ruled by an “Executive” in Clerk of Court Jan Horbaly who is accountable only to himself. Their disturbing letter says that the Federal Circuit judges and clerk are only accountable to individual discipline in the states where they are licensed, yet those states have no jurisdiction whatsoever over the Federal Circuit or its judges.

The United States of American -or- The Attorney Patronage States of America?
The United States of America -or- The Attorney Patronage States of America?

How can any patent holder ever hope to find justice in a Federal Circuit (which handles ALL patent appeals) that is so corruptly managed by cronyism and a mishmash of ambiguous and self-serving rules?

The letter says “we have no jurisdiction over judges.” However, that statement ignored Dr. Arunachalam’s main argument that the DC Bar’s knowledge of the misconduct requires them (as attorneys) to “inform the appropriate authority.” The DC Bar is refusing to follow its own Professional Rules. See Rule 8.3 above.

The Rules say that the attorney who learns of misconduct is required to report. The Rules say nothing about the non-lawyer messenger being the one responsible. Given the Byzantine maze of rules that the legal profession puts forward as its self-regulating guidelines, such a suggestion is obscene frankly.

Attorneys ruining Washington, U.S. patents and U.S. governance?

The DC Bar’s letters further illustrate how attorneys are ruining Washington, constitutional property and civil rights. Attorneys comprise almost 50% of Congress and the Cabinet. These DC attorneys cannot even “self-police” their profession in the face of judicial financial reports (prepared annually by the judges themselves) that reveal the Leader v. Facebook judges held undisclosed stock in Facebook, then benefited themselves by ruling in Facebook’s favor.

Will the U.S. Supreme Court push back on this ethical darkness? We’ll soon know.

DC Bar Reply to Dr. Lakshmi Arunachalam's disciplinary complaints against Federal Circuit judges and the Cl...

Postscript AFI Editorial: The Washington Post just reported today about the practice of Congressional family members lobbying on bills before their relatives. For example, Senator Harry Reid’s attorney son-in-law Steven G. Barringer lobbied for a large property development in Henderson, Nev. which failed to pass. However, Senator Reid arranged for the property to be grandfathered into the 2009 Omnibus Public Land Management Act. Reid continues to support additional conveyances of land around this site to the city. Reid’s attorney son Josh was named Henderson’s city attorney in 2011.

Senator Reid then sponsored a Senate ethics bill to “deliver to the American people a government as good and honest as the people it represents.” Senator Reid, himself an attorney, probably believes that this duplicity is moral.

Conclusion: A majority of non-lawyers must start running attorney disciplinary bodies, and the number of attorneys running Washington must be brought more in line with their actual professional composition in public life. The current situation where almost 50% of Washington is run by attorneys who refuse to “self-police” their profession is untenable. This is why Washington is broken.

Are the Federal Circuit and DC Bar causing the problem, or merely reflecting this ethical collapse? Will the U.S. Supreme Court take steps in Leader v. Facebook to hold these misbehaving attorneys accountable?

The U.S. Supreme Court has the authority and pulpit to push back on this attorney misconduct, but will they?

See David S. Fallis and Dan Keating. “In Congress, relatives lobby on bills before family members.” The Washington Post, Dec. 30, 2012.


  1. Comment by: BG761 (I'm back!)

    We are getting to the time in which the Supreme Court makes a decision. Hopefully the court looks at the true facts of this case and then decides to hear the case on its merits not on the cover-up and in action by the Federal Circuit Court of Appeals.

    On the Federal Circuit Bar Association’s website, can scroll down the page to the heading “State of Patent Litigation“, and read comments by Chief Judge Randall R. Rader.

    On September 27, 2011 Chief Judge Randall R. Rader pointed out areas deserving of attention to improve patent litigation before the Eastern District of Texas bench and bar. He points out six areas that the courts need to focus their attention on. It is very discouraging reading because he says all the right things of what should be done but as we have seen the courts practice, they are so willing to be judicial activists instead of true judges.

    Judge Rader even disregards his own statements when he allowed the Federal Circuit not to listen to the Leader v. Facebook case En Banc. (I think this was all decided by Clerk of Court Jan Horbaly. I wonder if any of the judges saw anything frankly.)

    Chief Judge Rader also points out the definition of a “patent troll” and a “grasshopper”. He states on page 17:

    “For that reason, I have always preferred an alternative definition of a “troll,” namely, any party that attempts to enforce a patent far beyond its actual value or contribution to the prior art.”

    Leader Technologies does not fit his definition of a patent troll because it was proven in court that the core software that drives Facebook is Leader's software. And we know that if Zuckerberg had produced the 28 hard drives during Leader's discovery, this question would have been definitively settled.

    However, the courts allowed Facebook to play their games and influence the courts and staff with their cozy relationships and who knows what else? He then goes on to describe the grasshopper:

    “The IP grasshopper is the entity that is quick to steal the “inventor-ant’s” work and research investment because he did no work himself and the winter of competition approaches. We can recognize the grasshopper because he refuses to pay any license fee until his legs and claws are held to the proverbial litigation fire. Once again, a grasshopper is hard to define, but I can venture a description according to the same basic notion that helped us identify the troll: A grasshopper is any entity which refuses to license even the strongest patent at even the most reasonable rates.”

    You notice he uses the word “steal” and he describes Mark Zuckerberg to a T! Remember, Judge Rader used those words for the description not me.

    Let’s hope the Supreme Court Justices can see the merits of this case and what it will do to future patents if allowed to stand as is.

    BG761 8-O

  2. Comment by: Chris

    America's Founders created our constitutional system specifically to REPLACE the patronage systems of Europe. Looks like our judges are dreaming for "the good old days." Shame on them. Let's hope the Supreme Court protects what our forefathers fought and died to preserve. My father had many buddies who are buried on Europe's battlefields protecting our constitution.

  3. Comment by: EUREKA MOMENT

    AFI, you may have figured out what's wrong with Washington in addition to the Leader v. Facebook case! Imagine a company run by 50% of any one profession and common sense says you'll see a BROKEN organization.

    Think about it.

    Imagine a school run by 50% plumbers.
    Imagine a builder run by 50% accountants.
    Imagine a non-profit run by 50% hedge fund brokers.
    Imagine a water treatment plant run by 50% chemists.
    Imagine a farm run by 50% nurses.

    It doesn't work. Of course these organizations would be broken and couldn't get anything done... just like Washington DC. Too many attorneys! Eureka! We aren't crazy.

  4. Comment by: Law Blogger

    Read this news from the Supreme Court justices meeting on Friday. In that case the judge's impartiality was impugned by the judge participating in plea talks. The Federal Circuit's conduct in Leader v. Facebook is MUCH worse.

    Jonathan Stempel, "Supreme Court to review judge's role in plea talks." THOMSON REUTERS, 1/4/2013

    In Leader v. Facebook Judge Lourie and Judge Moore's own federal financial disclosure forms reveal that they held stock in Facebook via widely publicized T. Rowe Price and Fidelity Contrafund holdings in Facebook.

    T. Rowe Price (Judge Lourie's investments) held more than a 5% stake in Facebook at the IPO. The holding was so large that the SEC required Facebook to disclose it in the S-1. It's all there... in living color.

    If nothing else, the Lourie and Moore (and who else?) Facebook holdings impugned the "impartiality" of the Federal Circuit.

    Am I from another planet? Did these judges really think that they could get away with lining their pockets like this in such a high profile case? The silence of the mainstream media is deafening. I believe that Facebook has bought off all the mainstream news editors. They're like Jim Jones' people in Jonestown, Guyana. They've drunk the FB Kool-Aid. What happened to press independence?... Oh wait, they all have fat little offshore bank accounts. What was I thinking?

  5. Comment by: binky

    How much more blatant can you get than holding stock in Facebook, then ruling for Facebook anyway? ...after you just invalidated their evidence... but wait ... you made up new arguments for your precious Facebook. This conduct belongs in a zoo, not a hallowed US court. Are we not to expect justice any longer? C'mon Supreme's, restore the rule of law here.


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