It seems that you can always use the word "surprising" and "Judge Rakoff" in the same sentence.

Summary Judgments has been closely following who will represent the voice of U.S. District Judge Jed Rakoff in the appeal of the $285 million settlement between the Securities and Exchange Commission and Citigroup. Though both parties consented to the deal, Rakoff blocked it on grounds the agreement wasn't in the public's interest. Since the appeals process doesn't allow for an adversary - Rakoff in this case - we wondered back in a January blog post, who will represent Rakoff's reasoning?

The Second Circuit, in a 17-page order on Thursday staying the trial court proceedings, said it would direct the clerk of the court to appoint counsel to represent Rakoff's view. While the three-judge panel on Thursday didn't rule on the merits of the appeal, it meted out harsh words for Rakoff's opinion and said there was a "strong" likelihood it would be overturned. On Friday morning, as my colleague Jon Stempel reported, it picked the lawyer for Rakoff's view: John "Rusty" Wing, of Lankler Siffert & Wohl, who once worked with Rakoff as a federal prosecutor in the 1970s.

The process by which the Second Circuit selected Wing is unconventional, and it's unclear what it means for the rest of the appeals process.

According to a letter from Rakoff to the 2nd Circuit clerk Catherine O'Hagan Wolfe posted on the court's docket, Rakoff suggested Wing to Wolfe. But it seems, from the five-line letter, that he was invited to do so; his letter begins: "I write at your request to recommend that the Court of Appeals"

The court then selected Wing "at the suggestion of District Judge Jed Rakoff," according to the court's order released on Friday.

These brief correspondences raise as many questions as they answer. Should Rakoff have had a say in choosing the counsel? Is that counsel representing him personally - or the views he espoused in his district court opinion? Should Rakoff correspond with Wing, and if so, is their communication protected by attorney/client privilege?

Wolfe, the clerk of the court, declined to provide much detail when I asked her about the selection process, saying only, "Judge Rakoff recommended a lawyer who is a competent practitioner before the court."

"Mr. Wing is not representing Judge Rakoff's personal position," she added. "He is advocating to the appeals court a position that no other party in the case is going to present."

Wing didn't return my call for comment.

Arthur Hellman, a law professor at the University of Pittsburgh and expert on the federal judiciary, says Rakoff's recommendation of counsel "seems to personalize this in a way I think would not be in anyone's interest to personalize it."

At issue in the appeals challenge is not Rakoff personally, but Rakoff's record - and that should speak for itself, without any involvement from the judge in the case, says Hellman.

Hellman points to analogous situations in the U.S. Supreme Court in which the court occasionally appoints attorneys on a pro bono basis to represent positions that neither party wants to advocate for in the high court, but that had percolated through in rulings by lower court judges. In those situations, Hellman notes, the Supreme Court justices don't consult the lower court judges in seeking counsel.

"Once Wing accepts the assignment, it's a public assignment. There's no reason to draw upon additional insights or thoughts or theories that Judge Rakoff may have," says Hellman.

Wolfe, the court clerk, said she couldn't answer questions about whether Rakoff and Wing will communicate.

Or, as Richard Painter, an ethics professor at the University of Minnesota law school, notes, Wing is really working for the Second Circuit.

"He is not judge Rakoff's lawyer. He is a lawyer for the judicial circuit to present one side of the argument," says Painter. "We don't have a system where trial judges go before the court of appeals to defend their opinion. They make their case in the opinion."

Roy Simon, a professor at Hofstra University School of Law and ethics specialist, however, thinks Rakoff should be able to communicate with Wing, and that those communications would be protected by the attorney/client privilege.

"I think Judge Rakoff needs an attorney who can really explain his philosophy, and why he thinks there was really a conspiracy against the public interest," says Simon. "Rakoff is entitled to get not just his on-the-record remarks before the 2nd Circuit, but his thinking."

An argument date has not yet been set in the appeals case.

(Reporting by Carlyn Kolker)

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