22 minute read
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.
Advertisement
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
ADVERTISE HERE!
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” i n Dallas County.
For more information, contact (214) 321-3238 or dba@legaldirectories.com 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.
DBA/DAYL Moms in Law
Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms. Email cpleatherberry@gmail.com to join the Moms in Law email listserv.
NEED TO REFER A CASE?
The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/ lawyerreferralservice or call (214) 220-7499.
Appellate/Antitrust & Trade Regulation
Preparing for Oral Argument Virtually
BY MICHELLE MAY O’NEIL
Following the shutdown due to COVID-19, the Texas Supreme Court and most of the Texas courts of appeals shifted to hearing oral arguments remotely. We all had to adjust very quickly to the new virtual reality. Here are the lessons I learned from my experience presenting one of the first virtual oral arguments.
You Are Only as Good as Your Technology
The first lesson I learned was your effectiveness is limited by your technology. If you do not have a certain quality of video card in your computer, you cannot use the latest version of the video conferencing software. If you do not have a sufficient speed of internet, your video can lag and pixelate. If you do not have a noise-cancelling microphone, everything that happens near your room will get picked up for all to hear.
So, check your tech before you need it. Invest in a new computer, hard-wired internet connection, faster speed, external webcam, noise-canceling microphone, and lighting.
Also, make sure you have the correct
software downloaded and updated to the present version. Nothing will shut you down faster than your computer halting everything to do a software update. As luck goes, it would inevitably happen two minutes before your presentation is to begin.
2. Practice With Your Setup
When presenting in person at a court I like to go see the court in advance to get a feel for the setup. Similarly, a few days before the actual day of virtual argument, I set up a practice session with a member of my staff for dress rehearsal. We set up the room, camera, background, desk, and test everything (including my outfit and shoes). Doing that showed me that I needed to make a few adjustments to camera angle, lighting, sound, and content. We had plenty of time to make those adjustments and reconvene for another trial run before the big day.
3. Evaluate Your Space
Everyone debates about the background. Many of the judges and justices use a virtual background that simulates the courtroom. The virtual background can look weird when you move around during your presentation because it does not necessarily move with you as fast as you move. If you talk with your hands, it may lose your hands in the background. To reduce this problem, you can try a greenscreen to make a virtual background instead of the video simulated one. I chose to use a large backdrop as the actual background instead of a virtual one. To me, this looked more professional and eliminated the pixilation issues of a virtual background. I think the more professional you look in the four corners of the screen, the better your presentation will be received.
4. Thinking on Your Feet Isn’t Just a Saying
Several justices have gone on record emphasizing the need for attorneys to do everything they can to make a remote argument as much like an in-person argument as possible. This includes dressing like you are in court and standing during your presentation. In my presentation, it was important to me that I be able to stand because I think better on my feet. I used a podium on my conference table to hold my notes and information I wanted to reference during the presentation.
5. Consider the Lag Time in Questions
One of the biggest challenges was waiting for the lag time in the video when the justices would ask questions. Even just a one-second lag can slow down the interaction. The justices try to be mindful of this by making a hand gesture as they are starting to ask a question to get the presenter’s attention. Even so, if the justice has a slow internet connection it will slow down the delivery of their question. I was trained as an appellate advocate to answer the judge’s question and continue with my argument until there was another question in order to maximize the time to make the necessary points. Instead, in the virtual argument, I found I needed to answer the question and hesitate before moving on to make sure that the question was received and there was no follow up.
As if he had a crystal ball, noted author Richard Susskind predicted in 2013 that appearance in physical courtrooms would become a rarity and virtual appearances would become the norm. Since the nationwide shut down, most appellate courts have shifted to hearing oral arguments remotely. Virtual oral argument requires thought of different logistics than inperson arguments. With preparation and practice, advocacy can still shine through, even over video conference. HN
Michelle May O’Neil is the Senior Shareholder at O’Neil Wysocki Family Law. She may be reached at michelle@owLawyers.com.
TURLEY LAW
Legal Research Access - Group Rates On-Site Security On Site Management 24-hour Cardkey Access No-Charge Covered VALET Parking Complementary Conference Rooms Dog-Friendly High-Speed Internet Access Sandwich/Deli Shop Beauty & Barber Shop ATM FedEx Drop Box Close to Dart Station Satellite TV Connections
CENTER
Take a tourat: www.turleyproperties.com or Email us at: brendag@wturley.com
Convenientat N. Central Exp. & University Blvd. Competitive lease pricing includes free conference rooms. Is your office building “Dog Friendly?” OURS IS! 214-382-4118
Two Texas Regions. Two Must-Have Bench Books.
There is no better way to prepare for trial than to research your judge through
Texas Lawyer’s Bench Book Series!
Call 800-756-8993 or shop online to order your county’s Bench Book today!
www.TexasLawyerBooks.com
DBA WE LEAD
WOMEN EMPOWERED TO LEAD
DBA WE LEAD: Women Empowered to Lead in the Legal Profession is a leadership program designed to address the challenges of highperforming women who have practiced law for 8 to 15 years. The purpose of DBA WE LEAD is to address the unique challenges facing women in the legal profession; to empower, educate and uplift women lawyers to take an already successful law practice to new heights; and to prepare lawyers for active professional leadership within their law firm, the business community and the community at large. This program is designed for all women lawyers in whatever career role they are in, from law firms to inhouse counsel to those in private industry.
Program Details:
The DBA WE LEAD is accepting applications from women lawyers who graduated from law school between 2005 and 2012, have established themselves in their careers and communities, and want to further explore advancement opportunities and leadership skills. The program runs from February 2021 to November 2021 and includes four half-day sessions with mandatory attendance.
Cost: $1,000 Application Deadline: November 20, 2020 Need-based scholarships are available
For information and online application visit: www.tinyurl.com/2021DBAWELEAD Questions? Contact Judi Smalling at jsmalling@dallasbar.org.
Texas Trial Procedure and evidence
Texas Trial Procedure and evidence addresses The common issues ThaT arise
ThroughouT The various Phases of Trial including wiTh hearings, jury selecTion,
oPening sTaTemenTs, direcT and cross examinaTions, closing argumenTs,
deliberaTions, verdicT, judgmenT, and PosT-judgmenT moTions. sPecial rules governing bench
Trials, exPediTed Trials and jusTice courT Trials are also covered.
About the Authors
Jim Wren has more than 30 years of trial experience and has joined Baylor Law School’s full-time teaching faculty. He is board certified in Civil Trial Law and in Personal Injury Trial Law (by the Texas Board of Legal Specialization), and in Civil Trial Advocacy and Civil Pretrial Practice (by the National Board of Trial Advocacy).
Jim Wren
Jeremy Counseller is a Professor of Law at Baylor University School of Law, where he teaches Texas and federal procedure and evidence. He previously served as a law clerk to the Honorable Reynaldo G. Garza of the United States Court of Appeals for the Fifth Circuit and as an associate in the trial section of Bracewell & Patterson, LLP (now Bracewell & Giuliani, LLP).
MAKE A DONATION. MAKE A DIFFERENCE.
700,000 of the 2.6 million people living in Dallas
County qualify for free legal help from DVAP. These are the people for whom legal advice, counsel and representation is only a dream but for legal aid. Your donation to the Equal Access to Justice Campaign will give hope and seek justice for low-income people in our community. Together, we can make a difference.
Defining the Highly Compensated Worker
BY NATHAN PEARMAN
The U.S. Department of Labor’s new overtime exemption rules went into effect on January 1, 2020, setting the salary threshold workers will need to exceed to qualify for the Fair Labor Standards Act (FLSA) “white collar” exemptions at $35,568 per year, or approximately $684 per week.
In order to be exempt from overtime under the federal FLSA, employees must be paid a salary of at least the new threshold amount and also meet certain duties tests. If employees are paid less than the threshold or do not meet the tests, those employees must be paid 1.5 times their regular hourly rate for any hours worked in excess of 40 hours per work week.
In 2016, the DOL sought to double the previous threshold ($23,660 annualized, or $455 a week), but that provision was enjoined by Judge Amos Mazzant in the U.S. District Court for the Eastern District of Texas before it could take effect.
The new rule, in conjunction with the new leave rules passed in response to COVID-19, is resulting in employers reclassifying exempt workers to nonexempt status and to raise salary for others above the new threshold.
In addition to the $35,568 salary threshold, the new rule raises the socalled “highly compensated worker” threshold from $100,000 to $107,432. The proposed version of the DOL’s rule had set that number at around $147,000. The highly compensated employee exemption covers well-paid workers who perform some managerial duties. Employees designated as highly compensated face less stringent requirements for being exempt from overtime.
Here are some nuts and bolts of the new rule for employers as well as tips for how to address the new rules: • Under the new rule, nondiscretionary bonuses and incentive payments (including commissions) paid
LegalLine Volunteers Needed
LegalLine is seeking volunteer attorneys for our LegalLine E-Clinics on Wednesdays.
Calls may be made between 4-8 p.m. from the comfort oftheir own homes.
Participating attorneys will be emailed contact information for those who have submitted a request for a call.
www.DallasBar.org/LegalLine
on at least an annual basis may be used to satisfy up to 10 percent of the standard salary level. • The new rules raise the threshold for overtime exemptions to a minimum salary of $35,568 per year, as well as the threshold for highly compensated employees from $100,000 a year to $107,432 (of which $684 must be paid weekly on a salary or fee basis). This increase is approximately $40,000 less than what DOL initially proposed, and represents the 80th percentile (rather than the 90th percentile) of all full-time salaried workers’ earnings nationwide. • The “white collar” exemptions require employees to perform certain duties and to earn at least the salary threshold. However, highly compensated employees may be eligible for exempt status if they meet the reduced duties test, as follows: • The employee’s primary duty must be office or nonmanual work. • The employee must “customarily and regularly” perform at least one of the bona fide exempt duties of an executive, administrative, or professional employee. Note that the new rule does not alter the duties tests. • The new DOL rule does not include the 2016 proposal to automatically adjust the salary threshold every three years to the 40th percentile of earnings of full-time salaried workers in the lowest-wage census region. Instead, the new rule does not provide for automatic adjustments to the salary threshold. However, it is stated that the DOL “intends to update these thresholds more regularly in the future,” according to the final rule.
Employers should also assess their employees’ job duties to make sure they satisfy one or more of the “white collar” exemption criteria: • Executive Exemption: the employee’s primary duty is managing the enterprise, a department, or a subdivision of the enterprise. The employee must customarily and regularly direct the work of at least two employees and have hiring and firing authority (or at least input). • Administrative Exemption: the employee’s primary duty must be office or nonmanual work that is directly related to the management or general business operations of the employer or the employer’s customers. The employee’s duties must include exercising discretion and independent judgment with respect to “matters of significance.” • Professional Exemption: the employee’s primary duty must be work “requiring advanced knowledge” in a field of science or learning that is customarily acquired by prolonged, specialized, intellectual instruction or study.
Employers should be assessing whether they should increase employee salaries to fall above the new threshold, or whether it is more financially practical to reclassify an employee as nonexempt and pay overtime. Employers who reclassify employees to nonexempt status need to take careful steps to track affected workers’ work time and pay overtime premiums for all hours worked beyond 40 hours in a work week.
Employers should develop explanations to ensure the reclassified employees are aware that they are not being demoted, and that the changes are based entirely upon the new DOL rule.
Make sure that employees are provided training and instruction regarding systems for time-keeping, tracking overtime, and paying bonuses, and develop plans to manage or limit overtime hours by reclassified nonexempt employees. HN
Nathan Pearman is Senior Counsel at Gordon Rees Scully Mansukhani LLP and can be reached at npearman@grsm.com.
DVAP’s Finest
JARED SLADE Jared Slade is a partner with Alston & Bird.
How did you first get involved in pro bono? In law school, I participated in a Community Economic Development Clinic and did pro bono via the Volunteer Income Tax Assistance program. But it was when I was a summer associate at a law firm in town that I was taught pro bono was both a way to give back and develop important skills.
What types of cases have you accepted? I started with some basic estate planning matters and no kids-no property divorces. Then I graduated into a few consumer matters (like a foundation repair dispute). I also accepted a pair of federal court pro bono appointments, including a wage-and-hour defense under the Fair Labor Standards Act.
Why do you do pro bono? Because people need our help.
What impact has pro bono service had on your career? An immense one—pro bono secured my first client, my first jury trial (and win), and my first formal firm leadership role.
What is the most unexpected benefit you have received from doing pro bono? Getting in Headnotes as one of DVAP’s Finest. Seriously, though, the mentoring opportunities. Folks are exceptionally open to strategizing about issues in pro bono cases.
Pro Bono: It’s Like Billable Hours for Your Soul.
To volunteer or make a donation, call 214/748-1234, x2243.
Appellate/Antitrust & Trade Regulation
Practical Tips for Proving Attorney’s Fees After Rohrmoos
BY HON. MARICELA MOORE AND KATHERINE ELRICH
In April 2019, the Texas Supreme Court clarified the evidentiary standards for proving reasonable and necessary attorney’s fees in fee-shifting cases, stating that the lodestar analysis is the only method that applies. Rohrmoos Venture v. UTSW DVA Healthcare LLP, 578 S.W.3d 469 (Tex. 2019). Prior to Rohrmoos, there were two different methods in fee-shifting cases that courts frequently followed: (1) the Arthur Andersen method, and (2) the lodestar method. Notwithstanding the common application of these tests, the Supreme Court clarified that the lodestar method was developed as a short-hand version of the Arthur Andersen factors and was not intended to be a separate test. Instead, it was intended to be a focused and objective analysis that reflected most of the Arthur Andersen factors.
To eliminate the inconsistent application of these tests that was prevalent in Texas jurisprudence, the Texas Supreme Court clarified how to correctly apply the lodestar method: [T]he fact finder’s starting point for calculating an attorney’s fee award is determining the reasonable hours worked multiplied by a reasonable hourly rate, and the fee claimant bears the burden of providing sufficient evidence on both counts. [citation omitted]. Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing the services.
Once the base lodestar calculation is established, the second part of the lodestar method allows for an enhancement of the fee award based on “specific evidence showing that that higher amount is necessary to achieve a reasonable fee award.” The evidence offered to support an enhancement of the fee award cannot include considerations that were already accounted for in the first step. “Likewise, the base lodestar figure can be adjusted down when it is established, based on considerations not already accounted for in the first step, to be an unreasonably high or excessive fee award, creating a windfall for the prevailing party or its attorney.”
The Supreme Court stressed that the lodestar method is intended to provide an objectively reasonable calculation that reduces the discretion of trial judges, permits meaningful judicial review, and produces predictable results. Given the recent clarification, the following practice tips should be taken into consideration when a party seeks an award of attorney’s fees in fee-shifting litigation: 1. From the onset of litigation, counsel should keep detailed time records that itemize specific tasks. Time estimates based on generalities and the aggregation of tasks in a single time entry are discouraged. 2. Be prepared to produce billing records in discovery. This means that when preparing billing records during the course of litigation, be mindful that the records will need to be redacted to protect against the disclosure of attorney-client communications and attor
ney work product. 3. The non-prevailing party needs to be prepared to challenge the lodestar calculation. Because there is a presumption that the base lodestar calculation reflects the reasonable and necessary attorney’s fees, the non-prevailing party needs to designate its own expert to challenge the evidence that supports the base calculation. 4. Comply with your obligation to timely designate an attorney as the expert to prove the reasonableness and necessity of attorney’s fees. The Fifth District Court of Appeals held that it was an abuse of discretion for a trial court to enter an award of attorney’s fees when the prevailing party failed to designate an expert to testify regarding the reasonableness and necessity of attorney’s fees. 5. To support the enhancement or a downward adjustment of the base award, be prepared to present specific evidence that does not refer to factors that are already incorporated in the first step of the lodestar calculation. 6. When seeking an award of contingent appellate attorney’s fees, although the evidence required under the lodestar method is not required, the prevailing party is still required to provide opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for those services. HN
The Honorable Judge Maricela Moore is the Presiding Judge of the 162nd District Court and the Presiding Judge of Civil Jury Services. Katherine Elrich is a Partner at Cobb Martinez Woodward PLLC. She can be reached at kelrich@cobbmartinez.com.
