Judge William A. Fletcher of the United States Court of Appeals for the Ninth Circuit.

Before he became a judge on the U.S. Court of Appeals for the Ninth Circuit, William Fletcher was a law professor at Berkeley for 21 years.

It seems he hasn't lost his instinct to correct the work he receives—and to skewer lawyers if he thinks they've fallen short.

The latest to feel the sting is Munger Tolles & Olson partner Benjamin Horwich, who has the resume of a lifelong straight-A student—Princeton undergrad, Stanford Law School, and a series of federal court clerkships culminating with Justice Sandra Day O'Connor from 2005 to 2006 and Justice Samuel Alito in 2006.

But at the end of contentious oral arguments last year in a case pitting Horwich's client BNSF Railway in a fight with the Swinomish Indian Tribe over an easement agreement to run trains across the reservation, Fletcher dropped a bomb.

"Before you sit down Mr. Horwich, I should note that the court has serious concerns with the integrity of your brief. There are statements and representations that we view as inaccurate and misleading to an unusual degree," the judge said, adding that Horwich would be getting a written request from the court to respond.

"Thank you, your honor, I'm disappointed to hear that and I hope I can satisfy the court's concerns," Horwich said.

"Well, we were disappointed with the brief," Fletcher said, before adjuring the hearing.

Oof ouch. 

Horwich—who did not respond to a request for comment—plus two Munger Tolles associates and co-counsel from DLA Piper's Seattle office, filed a 38-page response explaining "why we believe the brief candidly represents the facts and the law."

"The duty of candor to the court is a bedrock of legal ethics and the adversarial process," they wrote. "We have always been committed to meeting this duty without compromise, and we have never sought to mislead the court. We deeply regret that the way we articulated our arguments prompted the questions raised in the order, and we hope the explanation in this letter will resolve the court's concerns."

Apparently, it did not.

Last week, Fletcher, who was joined by judges Michael Daly Hawkins and Mark J. Bennett, penned an opinion siding with the tribe on the interlocutory appeal, upholding the district court's decision to deny BNSF's motion for summary judgment. 

But 24 pages into the ruling, there's a section with the deceptively dry heading "Preemption, Repeal, and Abrogation." It consists of quotes from BNSF's brief followed by painstaking details of how "these misrepresentations would lead the unwary reader" to misunderstand prior holdings.

Writing for the panel, Fletcher also quoted from BNSF's letter to the court, noting that the Munger Tolles and DLA Piper lawyers wrote that they "could have made explicit" the full context of key decisions and that they "regret not taking that approach."

Clearly, that was not the apology he was looking for. 

"We, in turn, regret that BNSF's attorneys wrote only that they 'could have made explicit,' and that they 'regret not taking that approach,' instead of acknowledging straightforwardly that they misrepresented in their brief what the [Surface Transportation Board] and our court had written in those cases. We expect better from the attorneys who appear before us."

It's not the first time I've heard Fletcher call out a lawyer for perceived misrepresentations. 

When Gibson, Dunn & Crutcher partner Daniel Swanson was arguing before the Ninth Circuit in late 2018 on behalf of tobacco company Swisher International, for example, Fletcher put him on the hot seat. At issue: how the Gibson Dunn lawyers in their brief represented the factual record in an antitrust fight with Trendsettah USA Inc. over a private label agreement to make small cigars called cigarillos. 

"As I read the blue brief [by opposing counsel Gaw Poe] and then as I read the [Gibson Dunn]…red brief and then I went back into the record…I have to say that I found the description of the record in the blue brief was accurate and the description of the record in the red brief was incomplete and misleading," Fletcher said. "Every time I checked."

After a moment of stunned silence, Swanson said, "Well, that disturbs me, your honor."

"Yes, it should," Fletcher said, rattling off a specific example involving cigarillo wrappers that he said was presented in a way that was "misleading rather than incorrect."

 "Why are you writing it that way?" the judge said. "You expect I won't go back and check the record?"

(Public service notice to all lawyers litigating in the Ninth Circuit: Judge Fletcher WILL go back and check the record.)

"Your honor, I would urge you to look at it again," Swanson said. "We certainly feel quite chastised that your honor thinks we're trying to misrepresent something. We're not."