There is some inconsistency in the caselaw as to whether, or when, judicial criticism of counsel is appealable. Generally, harsh judicial appraisal of attorney behavior, alone, does not constitute a sanction and is not appealable. To be appealable, the uncomplimentary judicial words must be expressly identified as a reprimand. See, generally, Joseph, Sanctions: The Federal Law of Litigation Abuse § 16(B)(4)(a) (3d ed. Supp. 2007). All of the caselaw has developed in connection with judicial criticism of lawyers appearing in the actions in which sanctions were imposed. The appellant in Nisus Corp. v. Perma-Chink Sys., Inc., 2007 U.S. App. LEXIS 19183 (Fed. Cir. Aug. 13, 2007), took things one step further. He was not counsel in the action but a lawyer to one of the parties not appearing in the action. But his conduct, in this patent case, was found by the district court to have constituted inequitable conduct rendering his client’s patent unenforceable. After the district court entered its judgment, the lawyer filed motions to intervene in the litigation and to amend and reconsider the judgment. The district court denied the motion to amend, and the non-party, non-counsel-of-record lawyer appealed.

The Federal Circuit started from the proposition that ‛that a court's order that criticizes an attorney and that is intended to be ‘a formal judicial action’ in a disciplinary proceeding is an appealable decision, but that other kinds of judicial criticisms of lawyers' actions are not reviewable.“ The Court concluded that ‛ absent a court's invocation of its authority to punish persons before it for misconduct, actions by the court such as making adverse findings as to the credibility of a witness or including critical language in a court opinion regarding the conduct of a third party do not give nonparties the right to appeal either from the ultimate judgment in the case or from the particular court statement or finding that they find objectionable.“ The Federal Circuit reasoned that the sanctioned lawyer:

was not a participant in the district court proceedings other than as a witness, and the conduct at issue was not his conduct before the court or in the course of the litigation — it was conduct that occurred long before the litigation. [The sanctioned lawyer’s] pre-litigation conduct was plainly outside the scope of the court's authority to impose disciplinary sanctions, and the court's criticism of [the sanctioned lawyer] cannot reasonably be characterized as the imposition of a disciplinary sanction against him

The Federal Circuit concluded that no appellate jurisdiction existed. It further held that the district court did not commit error in denying the motion to intervene and, in any case, that, even if the motion had been granted and he were an intervenor, there was still no appealable issue to review, for the reasons described above.