Alex Kozinski. (Photo: Jason Doiy/ALM)

A little less than two years after Alex Kozinski abruptly retired from the bench amid allegations of harassment and sexual misconduct, the former chief judge of the U.S. Court of Appeals for the Ninth Circuit is set to return to the court as an advocate.

Kozinski is scheduled to handle oral argument Monday on behalf of the son of Pulitzer Prize-winning author Paul Zindel, who is seeking to revive a copyright lawsuit against the filmmakers behind the Academy Award-winning film "The Shape of Water." Kozinski's client, whom he represents alongside co-counsel at Toberoff & Associates, claims the filmmakers and MacMillan Publishers, which produced a novelization of the movie, lifted multiple copyright-protected elements of Zindel's play "Let Me Hear You Whisper." 

Contacted by email, Kozinski declined to comment in the run-up to arguments, saying he doesn't think it's appropriate to make public comments on a pending case. But Kozinski's return to the Pasadena courthouse where he presided as chief judge will be fraught given the circumstances of his exit from the bench. 

Kozinski resigned in December 2017 after a string of female law clerks, and in one instance, a former judicial colleague from his prior stint on the U.S. Court of Federal Claims, accused him of sexual misconduct and harassment. Kozinski's abrupt retirement shut the door on a formal review of complaints about him by the federal judiciary, which lost jurisdiction over any inquiry on his departure.

Kozinski has largely kept a low profile over the past two years. But after the allegations against him went unmentioned by a legal newspaper that published an essay he penned and a San Francisco radio station that conducted an interview with him, three women attorneys who had publicly complained about his behavior wrote in a New York Times essay that the "absence of a formal reckoning does not mean we should continue on like nothing happened at all."

"Where formal processes fail or are subverted, the legal community should insist on informal reckonings before any rehabilitation, rather than turn a collective blind eye to allegations of harassment," wrote Leah Litman, a professor now at the University of Michigan Law School, Emily Murphy, a professor at the University of California Hastings College of the Law, and Katherine Ku, a partner at Wilson Sonsini Goodrich & Rosati.

Murphy, in an email, said she continues to believe that "a full investigation of the serious allegations of misconduct is the only appropriate course of action before any judgment is made about Mr. Kozinski's fitness to continue to practice law." 

"Moreover, unwarranted media attention to him as a private citizen is symptomatic of our profession's complicity in vaunting status over failure of process and uncomfortable facts," she said. 

Kozinski's return clearly raises complicated questions for the Ninth Circuit bench and bar. Of the three judges drawn for the panel in the "Shape of Water" case, only Judge Kim Wardlaw served on the bench alongside Kozinski. The other two panel members are Judge Kenneth Lee, a recent appointee of President Donald Trump, and U.S. District Judge Matthew Kennelly of the Northern District of Illinois, sitting by designation.  

"The issue right now that faces our sort of  #metoo world is the issue of normalization after certain allegations have been made and after certain consequences have occurred," said UC Hastings professor Rory Little, who is currently a visiting professor at Yale Law School this semester. 

"My overall reaction is one of some sadness that [Kozinski] somehow feels it necessary to thrust himself back in the public eye," Little said. "It seems like poking a stick in the eye of the community. 

"You can just imagine this his return is going to upset some people," Little said.

Ninth Circuit scholar Arthur Hellman, a professor emeritus at the University of Pittsburgh School of Law, noted that former Supreme Court Justice Abe Fortas returned to argue before the court after resigning from the bench amid questions about his financial ties. 

"That draws a sufficient precedent that I wouldn't expect anyone to" raise questions about the ethics of Kozinski handling the argument, Hellman said.

Hellman added that the argument is likely to be more awkward for Kozinski than for any member of the panel since he'll be answering questions rather than asking them.

"He has to be very conscious of the shift in position," Hellman said.