Very Appealing Ethics
By Robert Don Gifford

I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.
— Justice Robert H. Jackson (1892 - 1954) 1

Many attorneys find inspiration in the fictional character Atticus Finch, the heroic attorney in Harper Lee’s novel To Kill a Mockingbird. Many lawyers look to Atticus as a benchmark of inspiration that exemplifies the highest ideals of the legal profession — the attorney who is both dignified in victory or defeat, who exudes that unquantifiable intellectual honesty and demeanor, the American ideal of our social morals and passion, and who is both respectful and respected.2

Ethics in the legal profession is a broad brush that encompasses all that a lawyer does, but undoubtedly ethics in any sort of “litigation” is most often discussed in the context of a jury trial. Legal literature is filled with case law, theory and advice as to what constitutes a proper closing argument, witness preparation, discovery issues, etc. There is also good argument that it is the appellate process where the lone attorney has the greatest opportunity to contribute in the development of “the law” with a single published opinion.

There is also no simple answer that exists for the question of what is ethical behavior in appellate litigation. The response to any ethical question will necessarily be case- and issue-specific, but the behavior of appellate litigators has been increasingly scrutinized by opposing counsel and the courts. Appellate advocates, who may have thought themselves removed from those textbook ethical dilemmas that may arise in trial practice, must now be more sensitive to their own duties of professional responsibility.3 While the majority of ethical guidance arises from actions at trial or outside of the court in client relations, a review of courts nationwide does provide sparing guidance and examples of what not to do — providing a bit of “Shadenfreude”4 for us all to learn from.

If It’s Worth Doin’ — It’s Worth Doin’ Right

To write and argue persuasively, one must write and argue competently. To do so, an attorney must clearly understand how any particular statute or governing case represents the position being advocated. Not finding controlling cases only reflects on the attorney as having poor research skills as an advocate and only hurts a client’s position.5 The misinterpretation and use of a particular case or statute in a brief or motion can also place a lawyer in the tenuous position of sanctions, whether it is a monetary sanction, reprimand from the licensing authority, or by public pronouncement in the form of a court’s scolding published opinion. In one instance, a court went as far as to order an attorney to appear with a supervisor to discuss the “overall poor quality of the defendants’ brief,” and whether it was done intentionally or because of “extremely sloppy” reading of [a] case.6

Essentially it is in our beginning in which we find our end. The first rule of the Oklahoma Rules of Professional Conduct, Rule 1.1 begins with our own competence. The rule, in part, states, “A lawyer shall provide competent representation to a client ....” In addition to knowing the pertinent legal authority to base your written and oral arguments upon, to avoid being sanctioned for poor legal writing, lawyers must also thoroughly know the underlying facts of the record below in their case, but be aware of the court’s own local rules about the proper form of papers7 and the disciplinary rules.8 Deficient research not only wastes an attorney’s time and client’s money but also wastes the time of the judiciary and the taxpayer.9

Frivolous Appeals and Those That Vexatiously Multiply Proceedings

About half of the practice of being a decent lawyer is telling would-be clients that they are damned fools and should stop.
— Elihu Root10

One of the first questions an attorney must ask themselves is whether they should take on the case in question. Attorneys are the frontline “gatekeepers” to prevent frivolous litigation.11 Rule 2.1 of the Oklahoma Rules of Professional Conduct provides that “[i]n representing a client, a lawyer shall exercise independent professional judgment ....” In addition, Rule 3.1 of the Rules of Professional Conduct12 provides “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.” The latter portion of this rule reflects the difficulty appointed criminal defense attorneys have in balancing issues in frivolous appeals and the constitutional right to counsel.13

If a federal appellate court determines that an appeal is frivolous, it may, after notice from the court and opportunity to respond, award damages and even doubled costs to the opposing party/appellee. Furthermore, this penalty may even be placed against the attorney personally if fault lies with that attorney.14 Whether the counsel’s conduct was “objectively reasonable” is the standard in which the 10th Circuit Court of Appeals views such issues.

An appeal can be frivolous in one of two ways. First, where an appeal is taken in a case in which the judgment by the tribunal below was so plainly correct and the legal authority contrary to appellant’s position so clear that there really is no appealable issue, it may be said to be frivolous. One court in particular said it well: “At every turn, [the appellant] disputes the indisputable and assails the unassailable.”16 Second, even in cases in which genuinely appealable issues may exist, an appellant’s misconduct in briefing and arguing the appeal may be such as to justify holding the appeal to be so frivolous in its undertaking so as to cause sanctions.

In one appellate example, a party filed a motion for extension of the page limit, which was denied. Instead of reducing the content of the brief, the appellant modified the margins and size of the type which was contrary to Rule 32(a) of the Federal Rules of Appellate Procedure discussing line spacing and type point requirements. This creative attempt to fit a square peg in a round hole cost counsel $1,000 along with an order that the penalty could not be passed along to the client in fees.17

In another example found in a civil rights appeal, a court considered sanctioning a lawyer for the improper use of the term “uncontroverted.” After a finding that the use of the word had been correct “in the technical sense,” the court admonished the attorney “[T]hat the questionable use of the term ‘uncontroverted’. . . did nothing to further [his] arguments, and we expect a higher level of candor and accuracy from counsel in the future.”18

In a rare discussion on appellate ethics coming from the U.S. Supreme Court, a defendant requested sanctions against the government because of misstatements during a settlement conference.19 The court affirmed a lower court’s award of $1 million in litigation costs on the basis of the inherent powers of the courts, which it viewed more broadly than any of the rules of procedure or applicable statutes. The court went on to state: “Although the ‘American Rule’ prohibits the shifting of attorney’s fees in most cases . . ., an exception allows federal courts to exercise their inherent power to assess such fees as a sanction when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . or delays or disrupts the litigation or hampers a court order’s enforcement . . ..”20

The judicial system fully encourages appeals that not only expand the law but strive to challenge the status quo. Clearly this guidance and “lessons-learned” should not chill an advocate or cause concern because an appeal may not be successful. A loss on the appellate level does not equate to one that was frivolous.21

Candor to the Tribunal — Misstatements of the Law and Record

The Rules of Professional Conduct impose the duty of candor to the tribunal at every stage of a case.22 The comment to Rule 3.3 provides that an “advocate’s task is to present the client’s case with persuasive force,” but that “loyal performance” must be tempered by the advocate’s duty of candor to the tribunal.23

Not only must an attorney know the facts of the case as dictated by the record and the applicable and controlling case law, they must be candid about facts and law adverse to their clients’ interests as well. Attorneys have a duty to the judicial system to be candid about the law and the facts of a case.24

In a case arising from the Court of Appeals for the Federal Circuit, the court went as far to publish the opinion as to what should not happen on an appeal: “[The] party has misrepresented the holding of the trial court and misstated the opposing party’s principal position. By forcing the court to expend extra time and effort in carefully double-checking every reference to the record and opposing counsel’s briefs, lest we be misled, such argumentation threatens the integrity of the judicial process and increases the waste of resources.”25

In an example from the 7th Circuit Court of Appeals, the appellate counsel was criticized for omitting a critical passage from a quote and placing a period in the quote where one did not exist. While the problem originated from a mistake in a trial court filing from another attorney, and because the appellate counsel was not the same trial counsel, the court gave appellate counsel the benefit of the doubt.26 However, it was clear that the court was not pleased with the counsel’s lack of intimacy with the record below when preparing the appellate brief.

Disclosure of Adverse Precedent

Rule 3.3’s Duty of Candor also requires the attorney to disclose legal authority in the controlling jurisdiction that is directly adverse to the client’s position and not disclosed by opposing counsel. While there is some ambiguity in what is considered “directly” adverse and controlling in any given jurisdiction, the more prudent path for an appellate attorney is to cite the case regardless and distinguish it if possible or state why it is not dispositive of the issue.

Some legal commentators believe that “controlling” would equate to only the same state as the pending case for state law issues or the same federal circuit for federal issues, and of course applicable U.S. Supreme Court decisions in either case.27 Still, this is not always obviously clear with even that basic guidance as demonstrated in a case from the 2nd Circuit Court of Appeals in which the court there was considering an issue involving Tennessee law (and Tennessee lies within the jurisdiction of the 6th Circuit), and in which there was already existing federal authority on the same topic within the 6th Circuit - which was contrary to the law of the 2nd Circuit.28

Furthermore, citing cases outside of the jurisdiction has its own inherent dangers in that while counsel may offer that single case for mere persuasion — those opinions from other jurisdictions are subject to change and counsel may not be monitoring the most recent developments in that particular “other” jurisdiction. In another example, counsel cited a federal district court decision from a different district, but failed to catch and note for the appellate court that the decision had been vacated before it was ever cited in the brief. The court there gave the attorney the benefit of the doubt, but not without scolding the attorney for not catching the mistake and filing a supplemental brief to notify the court of the case’s subsequent history.29

Citing authority, good and bad, only embodies the ever-changing face of the law and highlights the ideals of the profession. Good appellate briefs must not only be thorough and accurate but blatantly honest. Authority, both good and bad, only bolsters an argument to urge an appellate court to take the law in a specific direction. Candid briefing provides the tools a court will need to easily follow precedent, but on the other hand gives aggressive counsel instant credibility and the opportunity to persuade by distinction a case from the one that opposing counsel will claim is controlling.

Civility

Throughout this whole trial we were reminded of the deliverance from the baneful influence of long-haired men and short-haired women, and every time we looked at the county attorney’s long hair we thought how true that was.
— Hoover v. State, 175 P. 117 (Okla. 1918)

Civility in the legal process is always timely for discussion.30 Of course, concern about incivility between adversaries is nothing new,31 but uncivil appellate advocacy is poor appellate advocacy. The paucity of published case commentary on the issues of incivility in the appellate process would seem to indicate that is far less a problem than in other phases of litigation. However any appellate advocate will point out that stern letters from a clerk of the court or motions panel often address some matters. Civility amongst the bar is addressed in most generally in state disciplinary rules, but also within the court’s local and even codified federal rules32 — especially in the preamble.33 As stated previously, a federal appellate court has the authority to sanction an attorney under Federal Rule Appellate Procedure, Rule 46(c) for failure to comply with the court’s own rules.34

One blatant type of incivility that is unfortunately not that uncommon is the use of the “poison pen” in making disparaging remarks about opposing counsel or even a judge involved in earlier proceedings. One Missouri court addressed the issue and its end effects: “Frankly, resort to the use of such statements [odiums, sarcasm and vituperative remarks] is an indication of a lack of confidence in the law and the facts to support the position of the one using them.”35

This is seen far less often than in earlier days of frontier law, but in an Oklahoma case in the early 1900s, appellate counsel described the trial judge in an appellate brief as “the same judge who, when the politicians want to perforate the Constitution or undermine the Constitution, they run to this political judge.”36 Even back then the reviewing court was quick to strike the brief.37

Conclusion

It goes without saying that all legal advocates must appreciate their ethical boundaries. Zealous advocacy does not excuse lawyers’ ignorance of their professional obligations in the appellate courts any more than it does at the trial court level. Lawyers briefing and arguing appeals must be candid in their dealings with courts. This not only includes avoiding incorrect or misleading statements of both fact and law but also includes not misguiding a court by standing silent.

Beyond honoring their duty of candor, appellate lawyers must be able to reign in zeal when criticizing courts and previously established legal authority. Although it is true that a party cannot appeal from a decision without necessarily criticizing it, advocates must be cautious in their tone and manner in how far to take that criticism.

As one legal commentator wrote in the early 1920s and is as applicable today: “The lawyer must never forget his position, therefore, as a defender of the social order. Even if the judge is of limited perspicacity; even though a decision of the appellate court is based upon an apparently obstinate disregard of the record in the case, let the lawyer remember that undirected criticism can only serve to make the untrained hearer dissatisfied with the court, without having any effect on altering the decision.”45

1. Massachusetts v. United States, 333 U.S. 611, 639-640 (1948) (Jackson, J., dissenting).
2. James C. Moore, Atticus Finch Still Lives Among Us . . . But He Could Use a Little Help, 70 N.Y. St. B.J. 5 (Aug 1998).
3. See generally Douglas R. Richmond, Appellate Ethics: Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (Spring 2004); Narda Pierce, Selected Appellate Ethics Issues, Prof’l Law., May-June 2001, at 147.
4. Schadenfreude \SHOD-n-froy-duh\, noun: A German word that is loosely defined as the malicious satisfaction obtained from the misfortunes of others.
5. See Wayne Schiess, Ethical Legal Writing, 21 Rev. Litig. 527, 534 (2002) (examples of poor research and its consequences).
6. Hernandez v. N.Y.C. Law Dep’t Corp. Counsel, 1997 WL 27047, n.11. (S.D.N.Y.) (Not Reported in F. Supp.).
7. Dismissal is appropriate when a party disregards court orders and fails to proceed pursuant to court rules. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642-43 (1976).
8. See Judith D. Fischer, The Role of Ethics in Legal Writing: The Forensic Embroiderer, The Minimalist Wizard and Other Stories, 9 Scribes J. of Legal Writ. 77, 78-79.
9. See Roeder v. Islamic Rep. of Iran, 195 F. Supp. 2d 140, 184-85 (D.D.C. 2002), aff’d, 333 F.3d 228 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 2836 (2004).
10. As quoted in Amstar Corp. v. Environtech Corp., 730 F.2d 1476, 1486, n. 12 (D.C. Cir.), cert. denied, 469 U.S. 924 (1984).
11. Pitts v. State, 78 P.3d 551, 554-555 (Okla. Crim. App., 2003).
12. 5 O.S. 2001, ch. 1 app. 3-A; See also Rule 3.3, Duty of Candor.
13. See Anders v. California, 386 U.S. 738 (1967), Smith v. Robbins, 528 U.S. 259 (2000).
14. See Rule 38 of the Federal Rule of Appellate Procedure (FRAP) and 28 U.S.C. § 1927.
15. Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987)(en banc). For “jailhouse lawyers,” a federal prisoner may also lose “good time credits” if the court finds an appeal frivolous. Pursuant to the Prison Litigation Reform Act, a federal prisoner that has brought three frivolous suits will also lose the right to bring appeal without prepayment of fees. 28 U.S.C. § 1915(g).
16. Montgomery v. United States, 933 F.2d 348, 350 (5th Cir. 1991).
17. Westinghouse Elec. Corp. v. National Labor Relations Bd., 809 F.2d 419 (7th Cir. 1987); See also Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406 (9th Cir. 1990)(court sanctioned appellant and attorney for filing frivolous appeal but also stated that 28 U.S.C. 1927 authorized sanctions for failure to comply with rules governing the form of briefs).
18. Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 582 (10th Cir. 1990).
19. See also Chambers v. NASCO, Inc., 501 U.S. 32 (1991).
20. Id. at 33.
21. See generally, Miner, Professional Responsibility In Appellate Practice: A View From the Bench, 19 Pace L. Rev. 323 (1999); Hunt & Magnuson, Ethical Issues on Appeal, 19 Wm. Mitchell L. Rev. 659 (1993).
22. Rule 3.3 of the Rules of Professional Conduct, 5 O.S. 2001, ch. 1 app. 3-A.
23. City of Oklahoma City v. Oklahoma Tax Com’n, 789 P.2d 1287, 1298-1299 (Okl., 1990).
24.. See Christopher W. Deering, Candor Toward the Tribunal: Should an Attorney Sacrifice Truth and Integrity for the Sake of the Client?, 31 Suffolk U.L. Rev. 59, 66-74 (1997).
25. Romala Corp. v. United States, 927 F.2d 1219, 1222-24 (Fed. Cir. 1991) (post-filing conduct consisting of irreverent and illogical arguments based on factual misrepresentation and false premises rendered appeal frivolous).
26. Quality Molding Co. v. American Nat’l Fire Ins. Co., 287 F.2d 313 (7th Cir. 1961).
27. I.G. Hazard & W. Rhodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 329, 353 (1985).
28. Factors, Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d Cir. 1981).
29. Croy v. Skinner, 410 F.Supp. 117 (N.D. Ga. 1976).
30. Rhesa Hawkins Barksdale, The Role of Civility in Appellate Advocacy, 50 S.C. L. Rev. 573 (1998-1999).
31. Erwin v. Harris, 254 P. 718, 718-19 (Okla. 1927); Long-Bell Lumber Co. v. Newell, 91 P. 697, 697-98 (Okla. 1907); Kneeland v. American Loan & Trust Co., 138 U.S. 509, 513 (1891); Green v. Elbert, 137 U.S. 615, 624 (1891); Dranow v. United States, 307 F.2d 545, 549-50 (8th Cir. 1962); Anderson v. Federal Cartridge Corp., 156 F.2d 681, 686 (8th Cir. 1946); m, 85 F. 55, 57-61 (8th Cir. 1898); Commonwealth v. Davis, 280 A.2d 119, 120 (Pa. 1971).
32. See Practitioner’s Guide to the Tenth Circuit Court of Appeals (December 1998). Available at the Tenth Circuit Court of Appeal’s website at www.ca10.uscourts.gov/downloads/pracguide_web.pdf.
33. E.g., Fed. R. App. P. 38 (damages and cost for frivolous appeal), 46(b)-(c) (suspension, disbarment, or other discipline for “conduct unbecoming a member of the bar of the court”)
34. See section 3.3 of Plan for Attorney Disciplinary Enforcement, Court of Appeal for the Tenth Circuit.
35. State ex rel. Dyer v. Union Elec. Co., 312 S.W.2d 151, 154 (Mo. Ct. App. 1958).
36. Hoover v. State, 175 P. 117 (Okla. 1918).
37. Id. at 119.
38. Skolnick v. Hallett, 350 F.2d 861, 862 (7th Cir. 1965).
39. In re Paulsrude, 311 Minn. 303, 305-306, 248 N.W. 2d 747, 748 (1976).
40. In re Palmisano, 70 F.3d 483, 485-486 (7th Cir. 1995).
41. Washington v. Alaimo, 934 F.Supp. 1395 (S.D. Ga., 1996)(inmate filing a pro se motion in which he moved “all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother f_ _ _ er you.” (Edited by author).
42. Allen v. Seidman, 881 F.2d 375, 381 (7th Cir. 1989).
43. Five-H Corp. v. Padovano, 708 So.2d 244, 245 (Fla.1997).
44. State ex rel Okla Bar Assoc. v Grimes, 436 P.2d 40, 46, 48 (Okla. 1967) (Court still criticized counsel for suggesting all members of the court had accepted bribes absent proof). See generally William A. Berry & James E. Alexander, Justice For Sale (Macedon Publishing 1996)
45. Henry Upson Sims, Problems of Professional Ethics: The Lawyer’s Duty to the Judges, 11 A.B.A. J. 449 (1925).

About the Author
Robert Don Gifford is an assistant U.S. attorney for the Western District of Oklahoma on the Major Crimes Team and is an Army Reserve Judge Advocate serving as senior defense counsel for the 22d Legal Support Organization. The views expressed are those of the author and not those of the departments of justice or defense.

Very Appealing Ethics
Published 77 OBJ 3471 (Dec. 9, 2006)