Lawyer Thrown Out at 2nd Circuit Tries SCOTUS Appeal
"I think oral argument is largely a charade," Todd Bank said. But he doesn't believe his dust-up with the Second Circuit should figure into the Supreme Court's decision on the case, which centers on a rule requiring bar applicants to file sponsor affidavits.
April 21, 2020 at 07:43 PM
4 minute read
New York attorney Todd C. Bank, who was thrown out of the U.S. Court of Appeals for the Second Circuit last year for what he admits was a "sarcastic" remark to one of the judges, is asking the U.S. Supreme Court to review the argument he was trying to make that day.
Bank represents Robert Doyle, who is challenging the constitutionality of a local bar rule for the Eastern District of New York that requires applicants to provide sponsoring affidavits from other attorneys vouching for character and legal experience.
Bank, a Kew Gardens, Queens, solo, filed a 31-page certiorari petition on behalf of Doyle with the Supreme Court on Monday. The petition contends that, "in order for [Doyle] to enable a member of the bar" to provide "a reasonably accurate assessment" of his character, he would be required to "disclose beliefs regarding philosophical, religious, political, social, moral, and ethical matters."
The argument is that the requirement violates the First Amendment.
"The right not to speak is equally protected as the right to speak, and the right not to engage in speech related association is equally protected as the right to engage in such association," Bank argued on Doyle's behalf in the petition.
Bank, reached by phone, said Tuesday he doesn't believe his dust-up with the Second Circuit should figure into whether the Supreme Court decides to review the case.
"It could only affect it if the Supreme Court is aware of it," Bank said.
He didn't mention the episode in his petition, nor did the Second Circuit panel mention it in denying his appeal in December.
The New York Law Journal reported on the drama—which was also discussed on social media. The December 2019 hearing started with Bank telling the appellate panel he had nothing new to add beyond what he wrote in his briefs. Bank said he assumed the judges were familiar with the record, and asked if anyone had questions for him.
Circuit Judge Denny Chin asked about the affidavit rule's alleged harm to Doyle, then 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 said at the time.
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.
Chin replied: "Well, well, you are acting in a disrespectful and discourteous manner, and that's not appropriate."
Assistant U.S. Attorney Matthew Modafferi then rested on the arguments in the briefs, prompting Bank to ask for rebuttal time. Chin and a second judge told Bank he had "waived" rebuttal and was excused. Judge Barrington Parker then asked that Bank be removed from the courtroom.
Bank said in Tuesday's phone interview that although he had never been escorted out of a courtroom before, it was not his first time to feel frustrated with what seems like a lack of attention to his hard work writing briefs.
"I think oral argument is largely a charade," Bank said. "The judges pretend to be intellectual, but often they don't care."
Asked how he feels about the prospect of oral arguments before the Supreme Court, he said that would require the justices to grant certiorari—which he acknowledged is "statistically improbable" anyway.
On the other side of the case is U.S. Solicitor General Noel J. Francisco. His office did not respond immediately to a request for comment Tuesday.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllNasdaq-Traded Blockchain Company Countersues Financer Over 'Toxic Lending Practices'
4 minute readNY Appeals Court Grants J&J's Subpoena for Talc Expert as 'Clearly Relevant'
6 minute readDecision of the Day: Postal Service Shows Media Outlets' Requested Change of Address Data Is Protected
Decision of the Day: Canada-Based Defendant Had Virtual Office in New York, Giving Court Jurisdiction
Trending Stories
- 1The Law Firm Disrupted: Playing the Talent Game to Win
- 2Preparing Your Law Firm for 2025: Smart Ways to Embrace AI & Other Technologies
- 3GlaxoSmithKline Settles Most Zantac Lawsuits for $2.2B
- 4BD Settles Thousands of Bard Hernia Mesh Lawsuits
- 5Monsanto Moves to Pause PCB Trial That Starts This Week
Who Got The Work
Blank Rome partner Andrew T. Hambelton has stepped in to defend Fragrancenet.com in a pending trademark infringement lawsuit. The case, filed Aug. 29 in New York Southern District Court by the Blakely Law Group, targets the defendants for allegedly selling counterfeit fragrance products. The case, assigned to U.S. District Judge Lorna G. Schofield, is 1:24-cv-06521, Abercrombie & Fitch Trading Co. v. Quester (US) Enterprises, Inc. et al.
Who Got The Work
Davis Polk & Wardwell partners Mari Grace and Edmund Polubinski III have entered appearances for Australia-based Bitcoin-mining company Iris Energy and other defendants in a pending securities class action. The action, filed Oct. 7 in New York Eastern District Court by the Rosen Law Firm, contends that the defendants concealed the inadequacy of the company's site in Childress County, Texas, including it being 'ill-equipped' and unable to operate the company's proprietary design. The case, assigned to U.S. District Judge Peggy Kuo, is 1:24-cv-07046, Williams-Israel v. Iris Energy Limited et al.
Who Got The Work
Ryan S. Stippich of Reinhart Boerner Van Deuren has entered an appearance for biopharmaceutical company Veru Inc. and other defendants in a pending shareholder derivative lawsuit. The action, filed Sept. 30 in Wisconsin Western District Court by the Brown Law Firm on behalf of June Ovadias, accuses the defendant of failing to disclose that small sample sizes and other issues rendered it unlikely that the FDA would grant Emergency Use Authorization for the cancer drug candidate sabizabulin as a potential treatment for COVID-19. The case, assigned to U.S. District Judge William M. Conley, is 3:24-cv-00676, Ovadias, June v. Steiner, Mitchell et al.
Who Got The Work
Holland & Knight partners Cynthia A. Gierhart and Thomas Willcox Brooke have entered appearances for Pakistani American Political Action Committee and Rao Kamran Ali in a pending trademark infringement lawsuit. The action, filed Sept. 24 in District of Columbia District Court by Jackson Walker on behalf of Pakistani American Public Affairs Committee, accuses the defendants of using a mark that's confusingly similar to the plaintiff's 'Pak-Pac' marks without authorization. The case, assigned to U.S. District Judge Randolph D. Moss, is 1:24-cv-02727, Pakistani American Public Affairs Committee v. Pakistani American Political Action Committee et al.
Who Got The Work
Lauren M. Rosenberg and Yonatan Even of Cravath, Swaine & Moore have stepped in to represent Israel-based Oddity Tech Ltd. in a pending securities class action. The case, filed Aug. 30 in New York Southern District Court by Pomerantz LLP and Holzer & Holzer, contends that the defendant made materially misleading statements regarding the capability of Oddity's AI technology and ongoing civil litigation, resulting in the artifical inflation of the market price of Oddity's securities. The case, assigned to U.S. District Judge Margaret M. Garnett, is 1:24-cv-06571, Hoare v. Oddity Tech Ltd. et al.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250