12 He a d n o t e s l D a l l a s B a r A s s ociation
Column
A ugust 2020
Ethics
Ethics and Professionalism in Appellate Advocacy BY FRED MOSS
The Texas Disciplinary Rules of Professional Conduct (TDRPC) and the aspirations of the Texas Lawyers’ Creed are mostly discussed in litigation and transaction practice contexts. Rarely are they applied to appellate practice. Here are some ethical and professionalism issues that can arise in appellate advocacy. TDRPC 1.01 requires competence and diligence. A lawyer taking on an appeal must have the time and know-how to handle the matter alone or with help from someone who knows what must be done: how and when to file, the briefing restrictions, and mastery of the record and the law. The appellate rules of procedure require submissions to be clear, concise and accurate. While it is unlikely that violating these requirements would ever come before a disciplinary committee, a court’s rejection of an improper submission could reflect
badly on the lawyer’s competence and may prompt sanctions. TDRPC 3.01 requires a determination before filing an appeal or response that it is not frivolous. The TDRPC do not define “frivolous,” but the Texas “Standards For Appellate Conduct,” which closely track the Texas Lawyer’s Creed, provide a useful guide: “An appellate remedy should not be pursued unless counsel believes in good faith that error has been committed, that there is a reasonable basis for the extension, modification, or reversal of existing law, or that an appeal is otherwise warranted.” If, after undertaking a criminal appeal and determining there are no appealable issues, the lawyer should file an Anders brief. For lawyers unfamiliar with the Anders brief, see the Third Court of Appeals’ Local Rule 1, a detailed set of instructions on when and how to file one. Who decides what issues to present on appeal? TDRPC 1.02 states broadly that
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the client decides the objectives and methods of the representation, and the lawyer decides the means used to achieve those objectives. While the lawyer must consult with the client about the appeal, it is generally held that the lawyer decides what issues to present. Rule 3.02 prohibits taking actions that unreasonably increase the burdens of the case or delay resolution of the matter. Rule 4.04 prohibits using means that have no substantial purpose other than to delay or burden another party. In the appellate context, a lawyer cannot, for example, seek extensions of time in which to file a submission to harass the opposing party. TDRPC 3.03 is especially pertinent to appellate lawyers in requiring citation of “authority in the controlling jurisdiction known … to be directly adverse to the position of the client and not disclosed by opposing counsel.” As officers of the court, lawyers must endeavor to ensure the court has all controlling authority. The “Ethics Question of the Month” featured in the May 2020 Texas Bar Journal deals with this issue quite well and indicates that there is Texas authority for the proposition that directly adverse opinions by sister courts of appeals are “controlling authority.” A lawyer may believe the trial court’s rulings were unfair, biased, stupid, ignorant, or all of the above. However, an appellate brief is not the place to vent about the trial court. TDRPC 8.02 prohibits a lawyer from making a statement “with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” Good faith complaints about a judge’s performance should be made to the proper judicial disciplinary authority. A brief is also not an opportunity to rail
against opposing counsel. The Texas “Standards for Appellate Conduct” admonish lawyers to “treat each other and all parties with respect.” “Counsel also serve the Court by respecting and maintaining the dignity and integrity of the appellate process.” If appellate counsel learns that a fact or authority relied on in their submission to the court is not true or does not support the argument for which it was cited, TDRPC 3.03 requires counsel to correct the submission. And, of course, counsel must never, in the words of the Standards, “misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities.” TDRPC 8.04 prohibits deceit and misrepresentation. Does this preclude plagiarism in appellate briefs? Courts have admonished counsel for including large portions of court opinions, books and others’ briefs without attribution. What about “ghost writing” a pro se’s brief and not disclosing it? This has been widely condemned by the courts in the past, but increasingly it is being accepted as a way to “unbundle” legal services to make them more accessible. There are many other ethical and professionalism issues that can arise in appellate practice. The ethics rules and the professional Standards provide appellate lawyers a basis for rebuffing client demands that they act unethically or uncivilly. Finally, adhering to the rules and standards ultimately benefits the client and the lawyer. HN Fred Moss is an emeritus Professor of Law at the S.M.U. Dedman School of Law, Dallas, Texas. He has taught, consulted and lectured on legal ethics for over 30 years. He can be reached at fmoss@smu.edu.
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