The Second Circuit Court of Appeals at the Thurgood Marshall U.S. Courthouse in lower Manhattan. Photo: Rick Kopstein

A New York lawyer who was removed from the U.S. Court of Appeals for the Second Circuit last week over a viral courtroom blowup defended his comments Monday to the panel that heard his appeal.

In a letter, solo attorney Todd Bank, from Kew Gardens, Queens, stopped short of apologizing for loudly questioning the court's preparation and grasp on his case, but he did admit that he could have handled the situation in a "more diplomatic manner."

The Dec. 11 exchange between Bank and Judge Denny Chin led to Bank's removal from the courtroom by security, after Chin admonished him for "discourteous" and "inappropriate" behavior before the court. Audio of the incident has since been widely shared on social media by appellate lawyers, who seemed shocked by Bank's actions.

Bank, however, decried in his letter a "double standard," which he said prevents attorneys from pushing back against judges in certain circumstances.

"That does not change the nature of my own comments, but it does show, in my view, that there is 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," Bank wrote.

"To be sure, this fear is not limited to this court but, instead, is endemic in our, and, I imagine, any, legal system," he said.

Bank lost his appeal Monday in a challenge to a local rule for the Eastern District of New York bar that requires applicants to get a sponsoring affidavit from another attorney outlining what they know about the applicant's character and legal experience.

But the dust still had yet to settle in the dispute, and ethics attorneys said that Bank, who has branded himself the "annoyance lawyer," could potentially be vulnerable to disciplinary proceedings.

Last week's hearing started innocuously enough, with Bank telling the appellate panel he had nothing new to add beyond what he wrote in his briefs. He said he assumed the panel was familiar with the record, and he asked whether anyone had questions for him.

Chin, one of three Second Circuit judges hearing appeals that day, asked about the alleged harm to the lawyer challenging the affidavit, which in turn drew an assertion from Bank that the judge's remarks had "nothing to do with this case."

The hearing quickly went off the rails from there, as Chin pressed Bank to articulate what the alleged injury was—essentially, why he's in court in the first place.

"Are you serious judge? With all due respect, I don't know what to say," Bank shot back.

Chin responded: "You know what, I withdraw my question. You can sit down."

"OK, well, thank you. Thank you very much judge. I see that you read the briefs thoroughly," Bank said sarcastically.

An audibly irritated Chin informed Bank that he was acting in a "disrespectful and discourteous manner" and then had Bank removed from the courtroom when he tried to take his rebuttal time.

"You've waived rebuttal," Chin shouted from the bench, as a second judge chimed in as well.

Assistant U.S. Attorney Matthew Modafferi, arguing on behalf of the government, rested on the arguments in the briefs, ending oral arguments just minutes after they got started.

On Monday, Bank disputed Chin's line of questioning and said that he "regret[s] not having had a productive oral argument."

"I hope that the court and those who appear before it, including me, will learn from our experience," he said in the letter.

Legal ethics experts, however, warned that Bank's comments could lead to further probes into whether he had violated the New York Rules of Professional Conduct.

Rule 8.4(d) and 8.4(h) both forbid attorneys from engaging in behavior that is "prejudicial to the administration of justice" or that "adversely reflects on the lawyer's fitness." Another rule, 3.3(f), states that lawyers appearing before a tribunal shall not "engage in undignified or discourteous conduct" or "engage in conduct intended to disrupt the tribunal."

Any investigation would likely be premised on the need to maintain the decorum of civil court proceedings, said Michael Ross, an attorney ethics lawyer based in Manhattan.

"Civility is an important issue," Ross said. "Civility is very much a part of what federal and state courts demand," both in terms of professional conduct and in interactions with the court.

The Second Circuit, Eastern District and the state appellate divisions all staff grievance committees responsible for investigating possible violations of ethical standards. Such reviews could result from a complaint that has been filed against an attorney or by a sua sponte review initiated by the panel itself.

Given the viral nature of Bank's comments, "it's almost certain that one of them … would be looking into whether the lawyer's conduct violated one of those rules," Ross said.

Richard Maltz, who reviewed an audio recording of the incident, said that absent any prior disciplinary actions against Bank, it was more likely to result in a private admonishment, rather than public discipline.

Professional rules involving actions before tribunals, he said, are rarely used in ethics proceedings, and it would be "going pretty far" to target Bank's fitness to practice. Bank, Maltz said, was lucky not to have been held in contempt, which would have added additional layers of complexity to the review.

Most likely, Bank could receive a letter or some other form of private reprimand, said Maltz, a partner with Frankfurt Kurnit Klein & Selz.

"I think his conduct was snooty and arrogant, but I'm not sure the state would sanction him for it," Maltz said.

He continued: "They may want to do something. I just don't think it would rise to the level of public discipline."

It was likely that any ethics investigation would be handled by the Second Circuit's grievance panel, which has the ability to refer disciplinary matters to the Committee on Admissions and Grievances for investigation, a hearing or report. Much like the parallel state process, disciplinary actions are generally kept confidential, unless the panel orders otherwise.

Contacted by phone late last week, Bank said he was not aware of any ethics proceedings against him. He said he did not plan to issue an apology but would consider clarifying his position in writing to the court.

"If I misspoke, or what have you, I might put that on the record," he said in an interview.

Chief Judge Robert A. Katzmann, who heads the Second Circuit, declined to comment because the situation was "possibly a live matter."

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