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

Todd Bank, the New York lawyer who lost his case after being removed from a Manhattan federal appeals court for making "discourteous" comments during oral arguments, has petitioned for a rehearing by the circuit's full complement of judges.

In a court filing Monday, Bank attacked a Dec. 16 decision by the U.S. Court of Appeals for the Second Circuit that rejected his appeal by summary order, claiming the move amounted to judicial "fiat."

Bank, a solo attorney who has branded himself the "annoyance lawyer" for his work focused on  on helping consumers block robocalls, secure promised rebates and reduce email spam, said in his petition for en banc rehearing that the case raised novel constitutional issues, and that the Second Circuit's terse ruling implied the court had given "insufficient attention to the matter, knowingly issued an incorrect ruling, or both."

"To litigants and members of the public, it is disheartening when a court, and an appellate court even more so, issues a ruling without explanation; in effect, by fiat," he wrote in the four-page filing.

Bank was in court Dec. 11 to argue his appeal of a Brooklyn federal judge's dismissal of the case, which challenged a local bar rule that requires applicants to get a sponsoring affidavit from another attorney outlining what they know about the applicant's character and legal experience.

Bank had argued in court papers on behalf of his client, Robert Doyle, that the rule violated due process protections and improperly forced attorneys to engage in speech and expressive association.

But the arguments quickly went awry after U.S. Circuit Judge Denny Chin asked Bank to explain the specific injury that Doyle had suffered as a result of the rule. Bank responded that the question had "nothing to do" with the case, and when Chin pressed again, Bank shot back: "Are you serious judge? With all due respect, I don't know what to say."

The encounter, captured in an audio recording which later went viral, continued to escalate from there, as Chin said he withdrew his question and told Bank to sit down.

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

An irritated Chin responded: "Listen, you know, you are acting inappropriately—you are acting inappropriately. Well, well, you are acting in a disrespectful and discourteous manner, and that's not appropriate."

Following the outburst, Assistant U.S. Attorney Matthew Modafferi rested on the government's briefs, prompting Bank to ask the panel for rebuttal time. A second judge interjected to tell Bank that he had waived his rebuttal and was excused, before having him removed from the courtroom.

The unusual exchange quickly became a much-discussed topic among appellate attorneys on Twitter, and the recording even prompted some ethics attorneys to wonder whether Bank could be exposed to potential disciplinary action.

Bank, for his part, refused to back down from his comments. In a Dec. 16 letter to the court, Bank said the confrontation highlighted 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.

The Second Circuit panel, which also included U.S. Circuit Judges Robert D. Sack and Barrington D. Parker rejected the appeal later that day.

"Doyleʹs claim that the requirement of a sponsor affidavit is somehow unconstitutional is specious, and we reject it," the panel said in a three-page order.

The Second Circuit has repeatedly affirmed its strong preference against granting en banc rehearings, which require a vote by all the circuit's judges, and such a move would be even more rare for a case disposed of through summary order.

Bank, who practiced in Kew Gardens, Queens, said in an interview that his appeal was "very meritorious," and called the panel's order an "abdication of the court's duty, not just to the parties, but to the public, to explain its reasoning."

"It's frustrating when the impression that the court gives is that they're simply blowing off your case," he said in a phone interview.

Bank acknowledged that it was "always difficult" to get a rehearing, a feature he attributed to the "collegial environment" and close working relationships among appeals court judges.

"I think regardless of the merits of the petition, it becomes a sort of ego battle or ego situation," he said.

"I think it often becomes like an office politics situation," Banks said.

The case, on appeal, is captioned Doyle v. Palmer.

 

Read More:

NY Lawyer Who Was Ejected From 2nd Circuit Courtroom Just Lost His Case

Attorney Booted From 2nd Circuit Argument Defends Comments Toward Panel

'You Are Acting Inappropriately': 2nd Circuit Scolds Lawyer Before Kicking Him Out