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The Ethics of Appellate Advocacy

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The Ethics of Appellate Advocacy

Appellate ethics are often an afterthought, but they shouldn’t be. Ethical quandaries arise in a variety of different contexts throughout the lifecycle of an appellate case. Using realistic hypotheticals and examples from actual appeals, consider how the Model Rules of Professional Conduct apply on appeal.

Transcript

- In this presentation, we're going to talk about the ethics of appellate advocacy. You know, people don't often discuss appellate ethics, perhaps because appellate practice seems a little less rough and tumble than trial practice, or perhaps because there aren't separate ethic rules that apply exclusively to appeals, but nonetheless, ethics are an important consideration, not only when you handle trial-level work, but also when you handle cases on appeal. And so our focus today is gonna be on applying ethical rules in the appellate advocacy context. In this presentation, you will do the following. First, you'll learn why appellate ethics matter. Why there are consequences. Second, you'll examine four appellate-specific context where an ethical quandary may arise. They're certainly not the only four context where you could have to consider your ethical obligations, but they're four common ones that you could envision happening in most any appeal. And that raise some common questions of professional responsibility. Third, you'll apply the Model Rules of Professional Conduct to each context to understand what the best practices are. And then finally, you'll emerge with a better understanding of how to maintain your ethical obligations when you're litigating a case on appeal. Let's get started. First, why do ethics matter, especially in an appellate context? Well, ethics are principles and values that together with rules of conduct and laws regulate a profession. For example, the legal profession. They act as important guides to ensure that rights and proper conduct occur every day in the practice of law. Moreover, they are ways of codifying or putting pen to paper about as a group, the norms that we lawyers believe should govern us. They're the guideposts for how we believe we ought to behave and how we expect other lawyers to behave and to treat us. Our ethical obligations arise as a result of a variety of different obligations that we have as lawyers and those obligations arise both in a trial-level context, but also in an appellate context. We owe obligations to our clients, to the court, and to society. And that doesn't change simply because we're not arguing in front of a jury. To the contrary, appeals have important issues for clients and our obligations to be zealous advocates flow just as surely in an appellate context, as they do in a trial-level context. There are serious consequences in many appeals and that means that our duty of candor to the court is just as important in an appeal as it is in a trial-level brief. And we want to advance the law to create a just and fair society. And appellate advocacy and appellate cases are one of the many ways that as lawyers, we help advance the status of the law in the United States. So, all of these obligations are reasons why ethics matter and they matter just as much when you're handling an appeal as they matter when you're handling a trial-level case. Those aren't the only obligations. Of course, lawyers also owe obligations to our firm or practice organization, as well as to ourselves. Every time you appear in front of a judge, you are not only representing yourself and building up or breaking down your own credibility in that case and other cases going forward. But the way you behave in a particular case, reflects not only on yourself, but on others from the same organization or law firm where you practice. Those general obligations are as true in the appellate context as they are in the trial-level context. If you do something unethical in a case you're handling on appeal, that reflects poorly on you, not only in front of that judge, but judges talk, it can reflect poorly on you in other circumstances and other cases as well. We also have obligations to counter stereotypes about lawyers. And sometimes to counter particular stereotypes about particular types of lawyers for perhaps stereotypes about prosecutors or stereotypes about divorce lawyers. And that's just as true when we're handling cases on appeal as it is true when we're handling cases prior to the appeal at a trial-level stage of litigation. And finally, and most importantly, ethical obligations and ethical rules lead to better outcomes. And we should want better outcomes in all of the cases that we're involved with. Not only cases that we are trying before juries, but also cases that we are arguing or briefing on appeal. If you believe that ethics matter at all for the profession, then they matter just as much in the appellate context. Courts often comment on the ways in which professionalism and ethics bear upon the court's beliefs or interpretations of attorney conduct. For example, in the United States versus Johnson case, the 11th Circuit noted that an attorney's credibility with the court is valuable not only to the attorney himself, but also to his client. You have to remember, whenever you're handling a case, whenever you are involved in any type of advocacy, whether it's trial-level advocacy or appellate advocacy, it's not just your personal credibility that's at stake in that case, but also the credibility of your firm or organization and all of your colleagues who have to appear before that same tribunal or deal with the same opposing counsel. Everybody who comes behind you will be impacted by the consequences of your conduct. And if you behave unethically, that can have negative consequences for those who follow you. It also can have negative consequences for you personally. Once you lose your credibility, it's very difficult to gain that credibility back. Erring on the side of caution protects a very valuable commodity for you as a lawyer, namely your good reputation. As lawyers, we sell ourselves, we're selling our skills and our abilities. The law can be a very personal thing. Issues can be huge for clients. Think about the context of family law or criminal law. The consequences are dire for your clients in those types of cases. Clients could choose any number of lawyers to represent them, but they choose us and they choose us for everything that we bring to the table, good and bad. And that includes hard skills like our writing and analytical abilities, but also soft skills, like our ability to work with others, our ethics and our reputation. No case, and no client, is worth losing your credibility, because doing so will follow you for your entire career. And that's just as true in an appellate context as it is in a trial-level context. Before we move on and talk about particular scenarios in an appellate context that can give rise to professional obligations and ethics quandaries, let's stop for a minute and talk about the rules that govern lawyers specifically. And I'm talking in this presentation about the Model Rules of Professional Conduct. What are the model rules of professional conduct? Well, they're a set of rules promulgated by the American Bar Association. They are rules that are accompanied by commentaries explaining those rules and the rules address the ethical and professional responsibilities of members of the legal profession in the United States. Now, because they're promulgated by the American Bar Association and not by a particular jurisdiction, the model rules themselves are not binding law or binding authority. Rather, they're intended to be exactly what they're called, a model. A way that various jurisdictions don't have to start from scratch when coming up with their own rules of professional conduct, but rather can begin with the model rules that have been drafted by the American Bar Association, and then can edit and adjust those rules accordingly as a particular jurisdiction believes might be necessary or appropriate. It makes sense in this presentation to talk about the Model Rules of Professional Conduct, because they're very widely adopted. All 50 states and the district of Columbia have adopted legal ethics rules that are based in some part, often in significant part, on the Model Rules of Professional Conduct. And not only do they serve as a model that have been adopted in many jurisdictions, but they state the general norms of legal practice in the United States. The American Bar Association is continually revisiting and revising the model rules, adding commentary, and issuing opinions interpreting those rules. And so, you can think about them as the way that we as a group, as a profession, develop and further our norms of professional conduct. In this presentation, as I noted previously, we're going to be talking exclusively about the Model Rules of Professional Conduct. In practice, however, the rules of the jurisdictions where you are actually litigating are likely to be the rules that apply. So in practice, if you encounter an ethical quandary, make sure that you also check your applicable jurisdiction's rules. All of the rules that we're going to address in this presentation, all of those model rules, have been adopted largely verbatim in most American jurisdictions. So the language where you practice is likely to be quite similar. But do remember that when you have an ethical issue in practice, you should be consulting the rules that apply specifically in your jurisdiction or in the applicable jurisdiction. The model rules still serve as good guideposts or norms, but it's the applicable rules that actually require you to behave one way or another. So, since we've been talking about ethics and since it's clear that ethics and professional responsibility is an important part of our legal community, why is there so little attention to appellate ethics in particular? Well, there's a lot of different reasons why. First of all, I think in general, appeals are not the first thing we think about when we think about litigation. Consider how movies and films depict the law. They tend to depict the law in two specific ways. They show courtrooms and boardrooms. They show trial-level work, they show corporate work. It's fairly unusual for movies and television to show the appellate process. And even when they show the appellate process, they tend to show only the smallest slice of the appellate process. The reality of appellate work is that it is by an overwhelming majority writing and research, but it would make a pretty boring television show or movie to show a lawyer sitting alone in an office, writing a brief for day after day, week after week, even though that's the reality of appellate practice. So, as a general matter, I just think that when we consider the law and litigation in a broad sense, the first place our mind goes as a culture is not to appellate work. Also, there's just something a little less enticing in a way, at least from a pop culture point of view about appellate work. There's no jury, there are no witness examinations, no Perry Mason moments in cross examination and no discovery. So as appellate lawyers, we find appellate work to be exciting, satisfying, and rewarding, but from a visual perspective, it just doesn't play as well in cinema or on television as trial-level work might play. As a result, there's just less attention to the appellate process. In addition, there's less attention to ethics in general than to substantive areas of the law. Think about how many CLE or continuing legal education credits you have to earn each year. In most jurisdictions, the lion's share, the overwhelming majority of those credits are in substantive areas of the law with only a few required ethics or professional responsibility credits each year. So, our own profession is saying to us that when it comes to studying and the work of being a lawyer on an ongoing basis, ethics is a smaller part of it than substantive material. And the same thing was probably true in law school. You probably only took one, maybe two or three classes that were specific to legal ethics, but you took many, many required classes. In fact, the entire first year curriculum that were required classes having to do with substantive topics. There are in general, fewer appeals than there are cases that are filed at the district court or trial court level. There are many, many more complaints than there are actually trials. There are many, many more trials than there are actually appeals. And the most interesting and glamorous of those appeals, United States Supreme Court appeals are very, very few in number. The reality is that many litigators will handle hundreds or thousands of cases throughout their career and will never handle any appellate work. On the flip side of the coin, most litigators will at least prepare for trial many times through the duration of their career even if those cases are ultimately settled. In addition, one of the reasons that there is probably less focus on appellate ethics is because the Model Rules of Professional Conduct do not contain any appellate-only appellate-exclusive ethical rules. And when you look at the way almost all of the model rules are drafted, it does seem like the American Bar Association was thinking of a trial-level litigator when they were drafting almost all of their rules. The commentaries and notes on the model rules bear this out as well. Almost all of the examples that are given by the American Bar Association to illustrate the rules clearly contemplate a trial-level litigation context. In addition, because the ethics rules that apply to appeals are the same rules that apply to trials, many lawyers assume that they already know the rules and they don't consider how those rules might play out or apply with nuances in the context of an appeal. Despite all of these facts, despite the lesser attention to appellate ethics, ethical considerations regularly arise in appellate practice. And we're going to talk about some common ones today. Ethical dilemmas can arise in a variety of different context. First, they can arise when you are considering whether or not you should appeal at all. There are issues under Model Rule 1.1 having to do with your competence. Do you understand the issues well enough that you could do a competent, fair and adequate job in drafting a brief on appeal and arguing an issue. If not, are you able to associate with another lawyer and educate yourself? Do you have not only the substantive ability, but also the knowledge of the appellate process to do a competent job on behalf of your client? All of these are considerations that yes, have an analog in the trial-level context, but are considerations that you should be thinking about when you are deciding whether or not to take a case and handle an appeal. There are also issues of diligence under Rule 1.3. The appellate process can have very different timelines than the trial-level process. And you need to be frank and ask yourself, do you have time, bandwidth, and resources to properly handle an appeal? Drafting an appellate brief and filing an appellate record can be a very different process than preparing a case for mediation or trial. And you need to make sure that you will be able to adhere to all of the timeframes and not prejudice your client as a result of blowing any deadlines. Another important consideration when thinking about whether or not to appeal in the first place is the admonition under Model Rule 3.1, that you only advance meritorious claims and contentions. If there are no issues on appeal that are supported by the law and the facts or that you could make a good faith argument should be supported by an extension of the current law or a change to the current law, then you shouldn't take the appeal in the first place. A case that may have had merit at the trial court level may not have appeal and may not have merit at the appellate level because claims that may have been possible could have been waived or forfeited along the way, such that there are no longer claims that can be raised on appeal that have merit. If there are only frivolous arguments that you can make on appeal, you may have an ethical quandary when you're considering whether or not to appeal or whether or not to take on a client who wants you to file an appeal. There can also be ethical dilemmas caused by issue conflicts. There can be conflicts if you take on a new case, an appellate case, that creates either a conflict with a current client under Model Rule 1.7 or a conflict with a former client under Model Rule 1.9. This is especially heightened where there may be a personal conflict as well, where you handled the trial and now you're handling an appeal of that same case, sometimes you find yourself in an ethical quandary where you may have to argue in order to preserve the client's ability to prevail that you did something erroneous or wrong at the trial court level. You may even have to argue that the litigation below, that your representation in that litigation constitutes ineffective assistance of counsel that should entitle your client to a new case or a new trial, and that can create personal conflicts. So, just as taking on a new piece of litigation at the trial level can cause a variety of conflicts. All of this is similarly true when you're considering whether or not to take on a case that is now going to be litigated on appeal. You can have an ethical dilemma arise when you have to decide how to deal with adverse authority. You owe a variety of different, sometimes conflicting duties to different parts of the legal system. You owe a duty of candor to the tribunal under Rule 3.3. At times, this can conflict with your obligation to provide zealous advocacy to your client. And you may be tempted to try to sandbag or hide a piece of negative authority because that would help your client, or you may believe it will help your client, but in doing so, you would violate your duty of candor to the tribunal. And so, that's an area where ethical quandaries can arise. You also owe obligations under Model Rule 3.4, to be fair to opposing counsel and fair to opposing parties. And the way you handle negative authority, the things you say about negative authority during oral argument, the way that you cite or do not cite negative authority in your brief can implicate those obligations that you have as well. Ethical dilemmas can arise when you're drafting the brief. You may be tempted to make ad hominem attacks about what the trial judge did below, but under Model Rule 3.5, you owe a duty to ensure that you uphold the highest degree of decorum to the tribunal. You have to be careful to make sure the issues you raise on appeal are truly about arguing the merits of the issues or the merits of a decision on an issue and not about attacking personally, a judge or attacking personally opposing counsel or an opposing party. While drafting the brief, you also have an obligation under Model Rule 4.1 to be truthful. And sometimes you may be tempted to spin the facts or draw inferences rather than directly citing facts. And that impulse may implicate your obligation to be truthful. There could be ethical dilemmas during oral argument. You may be tempted to introduce information in oral argument that's not part of the appellate record, but that you know, because you're the one who handled the district court trial below or the trial court trial below, but that can create a situation where there's conflicts under Model Rule 3.7. You may become a lawyer who is a necessary witness or who is testifying at the same time as you're representing the case if you do that, and that can create situations where you could be removed from the case. There can also be ethical dilemmas anytime there's an opportunity for ex parte conduct. And that includes when you're dealing with pro se litigants as governed by Model Rule 4.3, or when you're dealing with the court, as governed by Model Rule 3.5. All of the same rules that apply to the types of communications that are permissible or impermissible at the trial court stage, also apply at the appellate court stage. So in short, there can be ethical dilemmas throughout the entire life cycle of a case, including through various stages of appeal. Some of them arise when you have to think quickly on your feet, for example, during oral argument, and some of them arise when you're drafting a brief and some of them arise when you're dealing with other human beings or other parts of the judicial system. For example, when you're communicating with chambers or communicating with opposing counsel. All of these ethical dilemmas can arise on appeal. So why should you care? Why should you spend a precious hour thinking about appellate ethics? Well, all lawyers have a responsibility to see that justice is done, which is a little bit different than seeing that our clients win. Especially in criminal cases, there are serious issues of the development of the law, of fairness and of justice. And many times those important issues are litigated on appeal. So, if you believe that our judicial system should be fair, then you should believe that appeals are tremendously important. And that if there is any place that ethics matter, certainly that would include during the appellate litigation process. In addition, following ethical rules allows you to maintain credibility with the court and with the bar in general. It reflects positively on you when you're able to navigate these sorts of ethical quandaries properly. Finally, complying with the rules helps you avoid professional sanctions. You can be suspended or disbarred if you violate your professional obligations. There can be consequences for you individually, your firm, and for clients in litigation, things like adverse inferences or an award of attorney's fees and complying with the rules helps ensure that you avoid those potential sanctions and those potential consequences. So, whether you care about appellate ethics for society in general, or for more personal reasons, it's important that you understand and follow the model rules and the applicable rules in your jurisdiction when you're handling a case on appeal. The Office of Disciplinary Counsel versus Grigsby case from the Pennsylvania Supreme Court has an excellent quote about why ethics matter so much. The court said that, "Truth is the cornerstone of the judicial system and that a license to practice law requires allegiance and fidelity to the truth." Think about how challenging that edict is when you're defending a decision below on appeal. If you won, you want to preserve that appeal, potentially even if it tempts you to want to obscure the truth. On the other hand, if you lost in the trial court below, you have to carefully walk the line between undermining the trial court while still arguing for reversal. The reality is that things are often uncertain on appeal and unlike a trial, at least when it comes to appellate briefs, you typically have more preparation time. So there's no real excuse that you did something unethical because you were swept up and caught up in the moment. It can be hard on appeal, especially in writing, to admit that a position you took below at the trial court level was wrong, or that the law is unsettled when you know that, that could result in you losing an appeal, but you have to be prepared to do that if you're going to handle appellate matters. With that background in mind, let's look at four common contexts where ethical quandaries can occur during appellate litigation. We're gonna focus on a few specific areas that frequently come up during appellate cases. These include the importance of the record on appeal and the duty of candor, which includes not misrepresenting the record or the law and citing adverse authority properly. Let's start by talking about handling issues outside the appellate record. Now, this is something that you probably don't think about as much at the trial level of litigation, because at the trial level, at least while you're in trial, the record is evolving. It's happening right in front of you. If you realize that there's a particular fact that you need, you can call a witness to give testimony and elicit that fact. If you realize that there's a fact missing, you may be able to introduce a document or an exhibit that contains that fact. But when we're talking about appeals, the appellate record is a closed and more discreet list of facts than it often is in the midst of trial below. So, let's look at how the Model Rules of Professional Conduct apply specifically when you're handling issues outside the appellate record. What is the record on appeal? Well, at least in Federal Court, the Federal Rules of Appellate Procedure give us the general definitions and guidelines of what should and should not be done during the appellate litigation process. And Federal Rule of Appellate Procedure 10 tells us what makes up the record on appeal. It lets us know that the following items are what is the record. First, the original papers and exhibits filed in the district court. Second, the transcript of proceedings, if a transcript was taken. And third, a certified copy of the docket entries that has been provided by the district clerk. Now, there is an avenue or a method for correcting or modifying the appellate record. As the Federal Rules of Appellate Procedure tell us in rule 10e if there's a difference or a dispute about whether the record truly discloses what occurred in the district court, then that difference can be submitted and settled by the district court and the record can then be confirmed accordingly. So, if for example, there's two copies of the transcript and there appear to be some differences between the two of them, it's for the trial court to determine which of those two accurately reflects the testimony that was given at trial. So, what we learned from rule 10 of the Federal Rules of Appellate Procedure is that there is a discreet group of things that constitutes the appellate record. And ultimately, they all have to be things that were presented to the district court or were available to the district court. And the district court is the final arbiter of any corrections or modification to that record. So, once you get on appeal, the record is essentially closed. It can be corrected, but it is not gonna have anything new added to it. The record on appeal, therefore, only should include those facts that were before the district court. And so, your use of the effects in your appellate brief and in your oral argument on appeal is gonna be limited by those facts that make their way into the record. If you fail to include necessary information, there can be a whole variety of different consequences. It could result in the waiver of an issue. It could prevent the court of appeals from being able to address a particular argument. It can even deprive an appellate court of jurisdiction. The reality is if it's not in the record, you should take the position and assume it didn't happen. That's true even if you were the attorney who litigated the trial and you know that it actually did. Once we're on appeal, only those facts that make their way into the appellate record are the facts that should be considered on appeal and that should be argued in your brief and oral argument. It's important to completely and fairly designate the record, including getting necessary transcripts, because as you are putting the appellate record together, you are essentially defining the potential universe of the appeal. There are some issues that require certain materials to be part of the appellate record. For example, in a criminal case, an appellant waives sufficiency arguments if the appellant fails to order and include the entire trial transcript. A challenge to jury selection requires that the appellate record contain a transcript of voir dire. Likewise, hearing transcripts can be critical to evaluating issues relating to representation, conflicts of interest and suppression of evidence. Generally, it's the appellant's burden to ensure that all necessary materials are included, but that burden can shift. For example, in a criminal case, if the government wishes to argue that a conviction or ruling is proper, but that it should be upheld on a different theory or a different ground than the district court or trial court decided, then it's the government that has to include all necessary support for that theory as part of the appellate record. That could be part of the government appeal or a government cross appeal, if it's the defendant who took the initial appeal, but that's an example of where the burden can shift. And now it's not the party who took the appeal in the first place who has an obligation to ensure the appellate record is complete. As lawyers, we all need to make sure that our appellate records have all the necessary materials for the appellate court to decide any legal issue we wish to raise before that court. And that can include making sure that exhibits that were offered, but not admitted into evidence are part of the appellate record as well as documents under seal. So, it's not always as straightforward as simply taking the trial transcripts and all the exhibits that went into evidence at trial and calling it a day. Sometimes you have to put a lot more thought and legwork into putting together the appellate record, but because it sets the universe of what you can argue on appeal, it's critically important that you do it. Not only for an ethical reason so that you're not tempted to argue outside the record, but frankly, for a substantive reason as well, so that you leave open the possibility of making every argument that you think you ought to make on behalf of your client. Now let's look at an ethical quandary and ask, what should this attorney do? During trial, the defendant accused the prosecutor in a criminal case of misconduct. In order to defend against the accusations at trial, the prosecutor produced emails showing that, that prosecutor had consulted with a supervisor before taking the challenged action. After the defendant files a notice of appeal, the prosecutor supervisor finds some additional emails, demonstrating that the supervisor consulted with additional ethics counsel, all of whom supported the challenged action. The emails were sent and received during the litigation before the trial court, but these specific emails that the supervisor sent were never actually provided to the trial court judge. Can the attorneys supplement the record on appeal so that the appellate court can consider these additional emails? The answer is no. Issues cognizable on appeal, as we mentioned before, are confined to matters contained in the appellate record. The record doesn't appear out of thin air. Appellate counsel has a duty to ensure there's an adequate record from which the appellate court can resolve any legal issues that are going to be raised on their merits. Where the appropriate record is missing or incomplete, counsel must see that the defect is remedied by requesting augmentation or correction of the appellate record. Otherwise, counsel hasn't provided the type of advocacy that permits full consideration and resolution of the appeal. But supplementing the record can only be done where we're correcting a misstatement or omission in the record to make sure that, that appellate record accurately reflects what happened in the district court. So for example, if the government had created a summary spreadsheet for use at sentencing, and the judge was looking at that at sentencing and defense counsel was looking at that in sentencing, but it wasn't marked as an exhibit or otherwise filed. That's an example where adding that spreadsheet in on appeal might be appropriate because it was before the trial court. But here, we have emails that were not ever before the trial court. And so, the prosecutor in this situation cannot ask the appellate court to consider emails that the trial court wasn't given an opportunity to consider. Doing so would violate that prosecutor's ethical obligations. Let's look at another ethical quandary and ask, what should this attorney do? Let's say that an attorney is arguing a case on appeal. During oral argument, a judge asks a question about a fact that's outside the record. Now the attorney happens to know the answer to the question. The attorney actually just happens to know that fact. Can the attorney answer the question and in doing so, cite to a fact outside the appellate record? The answer is no. It's elementary, but the function of an appellate court in reviewing a trial court judgment on direct appeal is limited to a consideration of matters that are contained in the record of the trial proceedings and matters that were not presented before the trial court should really not be considered on appeal. Even if the request to consider those matters or those facts is coming from a solicitation by the appellate judge or the appellate court. And not because one of the attorneys or litigants is trying to introduce that fact. Look, the reality is that this happens a lot. It's human nature. Judges are people, too. They want to know the answer to questions. and they're curious. And you can be in a very tough spot when you're being asked a very direct blunt question by a judge during an oral argument about a fact that you know is outside the record. At minimum, you have to flag before you provide the information that the judge is asking for facts that are outside the record. And that if you answer, you are providing a fact that is not part of the record on appeal and truly should not be considered in the resolution of the merits of the case. Facts are a bit different than the law. Judges and clerks, they can do legal research just as well as you can, but judges and clerks really rely on the lawyers who are litigating an appeal when it comes to the facts. So in a sense, it's worse and more prejudicial and more difficult for the court to resolve and fix a representation of fact that's unethical or inappropriate as opposed to a representation of a legal conclusion or the law that's unethical or inappropriate. You should not simply interject the fact into the record. This kind of situation requires additional consideration. Sometimes there are ways to get a fact in that carefully walk the line between introducing a fact outside the record and giving the judge what he or she is asking for when they're asking a specific fact question that's very direct. Let's imagine a criminal trial where it's clear that an objection should have been made during the trial by defense counsel. At sidebar, off the record, defense counsel purposefully didn't make the objection for a strategic reason. If you know this on appeal, there are avenues or venues in which this fact can become relevant and introduced. For example, in an ineffective assistance of counsel claim, but it probably would not be appropriate for you to introduce this fact that is outside the record on a direct appeal, unless you can find a way that it is properly within the record on appeal, and you're able to clarify or supplement that record. So, just because you can't simply answer the question in an oral argument when pressed by a judge, doesn't mean that, that fact can never be considered by a court in any way. Perhaps there's another venue or another phase of litigation where that fact can be considered. When it comes to representing or misrepresenting the record, one of the most important aspects of the work of an appellate lawyer is providing the court with a fair and accurate presentation of the relevant facts. And courts have noted, including the Fourth Circuit, that there's really no valid reason for a lawyer to do anything else. Courts have further noted that although lawyers have an important duty of confidentiality and have to be zealous advocates for their clients, nonetheless, the interests of the client is in seeing truth prevail. And the system cannot function where lawyers are manipulating the system to mislead the court or to cover up facts that are necessary for justice. Judges and clerks can do legal research just like lawyers can, but they truly rely on the lawyers who are handling the appeal and creating the appellate record for the facts. So in a lot of senses, it can be worse and more prejudicial to misrepresent the record. Here are some best practices for ensuring that you don't run afoul of your ethical obligations. When you're at the trial court level, think big picture. Of course you want to prevail and you want to win, and you don't wanna be thinking about an appeal yet, but try to take a comprehensive view of what facts you might want to put before the district court so that you have those facts as part of the record if you do need to appeal. When appropriate, do supplement the record. If there's something that is missing or that can be clarified appropriately within the rules, you should do so. Know the appellate record inside and out. So, that if pressed during oral argument, you don't say something that is misleading or wrong. Be careful about the legal issues you raise. Avoid raising issues that are going to beg the question of facts that are outside the record. And where you must rely on information outside the record that you cannot properly introduce and make part of the appellate record, one solution is to ask for a remand so that you can litigate that issue before the trial court, get the facts before the trial court, and then again elevate the matter on appeal now with those necessary facts properly part of the appellate record. Now let's talk about your duty of candor to the tribunal. This comes from Model Rule of Professional Conduct 3.3, which in an appellate context, requires a variety of different things. First, you have to know what's in your brief and you have to make sure that it's right. Second, you should only be arguing meritorious claims and defenses. Third, you should ensure that the facts are correctly cited and that where appropriate, you're differentiating between facts and argument. And four, you should be very cautious about cutting and pasting blindly when you aren't the one who's done the research or checked the facts. Now, Model Rule 3.3 talks specifically about adverse legal authority. How do the rules define this concept? Does it have to be directly adverse or is there an obligation to disclose only tangentially adverse legal authority? Although it can be at times a little bit subjective, something you never wanna do is lose credibility with the court. So, if you have any uncertainty about whether existing authority is truly adverse, the better practice is to cite it, bring it to the court's attention and then distinguish it or otherwise explain why it doesn't result in an adverse ruling to your client. That's much safer than trying to be clever about your definition of what is and is not adverse. Look, it's often tempting to admit or at least gloss over adversity when you're writing parts of the brief. You should avoid that temptation as it could be viewed as an attempt to mislead the court and a violation of your professional responsibility. And let's be practical. The other side is not going to miss the bad law and they're going to cite it, making it look like you tried to hide that authority from the court. So, what should the attorney do who's handling this appeal? Let's say that an attorney has been working on a Third Circuit brief for several weeks. The night before it's due, the attorney learns that the Third Circuit issued a new decision. It's unpublished, and non-precedential, and directly adverse. Because the case was so recently decided, the attorney's opponent has not had a chance to cite it in the opposing party's brief. Must the attorney cite this case? Should the attorney wait to see if the reply brief cites the case, or if it comes up during oral argument. Lawyers constantly accuse each other of misciting legal authority or failing to cite authority that matters. And the rules provide limits for the misuse of legal authority. Model Rule 3.3a1 provides that you must not knowingly make a false statement of law to a tribunal. Model Rule 3.3a1 is about affirmative misrepresentations of the law, but there's also a rule about omissions. Model Rule 3.3a2 provides that you must not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. Looking carefully at 3.3, it is closely circumscribed. You can be disciplined if you fail to disclose legal authority. That is leave it out all together. As opposed to say citing it, but distinguishing it, which is what this attorney should do. And the authority has to be not disclosed by opposing counsel. So here, although it is risky, in theory, if the reply brief cites this adverse case, that might mean the attorney is not subject to discipline. But from a strategic point of view, that's a terrible solution because then, the attorney is losing an opportunity to distinguish or otherwise deal with the case. The authority has to be directly adverse to the position of the client. So, there can be some nuances as to whether or not a case is indeed adverse, but here in the fact pattern, we're saying that it is adverse. And there has to be a knowing failure to disclose, which is present here because the attorney has found the case. Here's what you don't want to see. You don't want to see what United States versus Johnson reported in the Ninth Circuit. You don't want a court calling you out for using ellipses to leave a decisive point of a statute out of the brief and omitting a relevant part of the law that the court should have decided. The fact that you will only be disciplined if you deliberately misstate the law or knowingly failed to cite directly adverse controlling authority is kind of beside the point. When you're arguing the law, you're trying to persuade a judge to rule in your favor. That means the judge has to be able to trust and believe in your analysis. If you don't present the law clearly and completely, you're going to lose the judge's trust because the judge is not going to have what's necessary to properly decide the case. In short, being disingenuous, misleading, or sloppy with your legal argument has all sorts of negative consequences that you should want to avoid. Here's what you want to see instead. You want to see what the court in United States versus Berg said in the Seventh Circuit. In this case, the defendant didn't make his best argument, but the court raised it at oral argument. And in response, the government lawyer agreed that the appropriate thing to do was recommend a remand. So on appeal, the government lawyer was willing to quote, unquote, lose, because that was the right thing and it was required and directed by the applicable governing law. And so you have to be willing to make those sorts of concessions where that's the right thing to do. What are some best practices to avoid misrepresenting the record? You want to carefully review your appellate record, make sure all page cites and quotations are correct. Do not be tempted to omit something where there is any chance that the omission could be misleading. And when you are not citing a fact directly, but rather an inference or a conclusion that can be drawn from a fact, make that clear, say so. What are some best practices to avoid misrepresenting the law? Well, first, don't cite a general rule that has a notable exception without in some way, pointing that exception out to the court. When you are talking about the holdings of cases, be accurate and complete. Avoid citing to a dissent, unless you're making it clear that this is indeed a dissent. Avoid doing too much selective quoting or the use of ellipses, where it could be viewed as being misleading or an effect to hide information from the court. And if you make an alteration to a quotation in any way, even if you don't think it's misleading, make sure that it's clear to the court that you have made some alteration. What are some best practices when dealing with adverse authority? Well, you have to disclose adverse controlling authority, but you've got to make judgment calls about how adverse is adverse and in some circuits and jurisdictions, you have to make decisions about whether or not to disclose unpublished opinions. I would urge you to err on the side of disclosure, err on the side of interpreting something to be adverse, for two reasons. First, you are less likely to run afoul of your ethical obligations, but second, it's just better advocacy. It's very likely that the opposing party, or the judge, or the judge's clerks are going to find this piece of authority and you get out ahead of it when you cite it, and you're frank, and you're fair, and you're clear about it, and you find a way to distinguish it or deal with it. You also always want to be objective when you're dealing with adverse authority. Try not to be an advocate, put yourself in a more objective state of mind when you're asking yourself, yes or no, is this case truly on all fours? Is it truly adverse? And as always, err on the side of disclosure. Now let's talk about what to do when you're deciding what claims you should even be pursuing on appeal. Model Rule 3.1 applies to meritorious claims and contentions. This rule limits a lawyer's assertion or contest of claims defenses or illegal or factual issues. If you are going to raise an issue, you have to have a basis in law and fact for doing so that is not frivolous. Now, that can include a good faith argument for an extension or modification or reversal of existing law, but you have to make it clear with the court that, that's what you're doing. Model Rule 3.1 also makes it clear, especially in the comments that there's a little more room for broad advocacy in criminal proceedings because the Constitution requires that and a criminal defendant who was facing incarceration is always entitled to make the argument that the prosecution or the government didn't make out every element that it was their burden to make out. So, what should this attorney do? While preparing for argument, a prosecutor notices that the indictment charges the defendant with attempting to transfer a firearm to a person in another state, but the statute at issue does not prohibit attempt. The defendant did not raise the issue below or in the appellate briefs. Should the government lawyer raise this issue? Yes. Either raise the issue or discontinue the appeal and ask for a remand. The long and short is that the prosecutor has to do the right thing. The defendant was convicted for conduct that is not criminalized by statute. The prosecutor simply cannot allow that to stand. The government lawyer is the representative not only of an ordinary party to a controversy, but rather a sovereign, the United States, a state government, a municipal government, and lawyers in that type of role are officers of the court. They're subject to heightened scrutiny. And it is important that they see that justice is done. So here is a context where various competing duties are reaching ahead and conflicting. There's a duty of zealous advocacy, along with a duty to ensure justice is done. And here, if justice was not done, the government lawyer on appeal should be asking for a remand or discontinuing the appeal rather than pressing an argument that is not supported by the law or by the facts. Here's what you want to see in that kind of context. You want to see a court saying something like what the court said in United States versus Duka where the Third Circuit said that, "One week before oral argument, the government informed us by letter that it had discovered a legal error in the indictment below and that it would not be defending the conviction." That's the appropriate thing to do. What are some best practices that you can employ? Well, first, the best defense is a good offense. Don't appeal unless there's a non-frivolous argument to make. Simply do not take a case on appeal unless you think that you can uphold your obligation under Model Rule 3.1 or similar rules that apply in practice. Now, remember you can make a good faith argument for a change or an extension in the law, but you're gonna need to do some legwork to make sure that that is indeed a good faith argument. Also, on appeal, when you have a choice of various issues that you can raise or various arguments that you can make, focus on the meritorious ones. There's no prize for raising the greatest number of issues on appeal, especially where some of those issues lack merit entirely. You would be better off to raise fewer issues, but issues that are truly supported by the law and the facts. Sometimes this means doing something uncomfortable, like conceding an issue or conceding an argument. In some cases, this could be different than deciding not to appeal at all. You might still have a meritorious ground for appeal, even if you have to concede some error or some issues below, but the best practices are simply not to get yourself into a situation where you have to defend anything that could put you in a situation where you are raising non-meritorious or frivolous arguments. The final quandary that we're going to look at is a situation where you have to worry about being fair to all parties and to counsel. Model Rule 3.5 tells us that the advocate's function is to present evidence and argument so that a case can be decided according to law. In fact, comment five makes this clear. That means you have to refrain from abusive or obstreperous conduct and you can present the cause and protect the record for subsequent appellate review, but you always have to maintain your professional integrity. You shouldn't be trying to influence a juror, a judge, a prospective juror or another official by any inappropriate means. It also means that you have to uphold your duty of fairness to opposing parties and counsel. Under Model Rule 3.4, a lawyer shall not in trial, allude to a matter that the lawyer knows is not relevant or will not be supported by admissible evidence. A lawyer shouldn't be asserting personal knowledge of facts, except when the lawyer is testifying or stating a personal opinion about the case or the credibility of a witness or the guilt or innocence of an accused. So what should this attorney do? When preparing a case for oral argument, an attorney discovers a very helpful case. The case is unpublished and was difficult to find. In fact, the attorney discovered it only by accident. The opposing party in this appeal is pro se and the attorney assured that the pro se litigant is never going to find this case. Can the attorney intentionally wait to address the case in rebuttal at oral argument, not raising it in any brief, knowing that the opposing party is likely to be totally unprepared and unable to meaningfully respond? Well, hopefully the answer is quite clear. No. You can't sandbag and intentionally suppress a meritorious argument in such a way as to prevent the opposing party or even opposing counsel in a non pro se case from having an opportunity to meaningfully respond. That's not fair to opposing counsel and frankly, it's also not fair to the court. The court is supposed to have the full benefit of argument and often briefing on any issue that it's going to decide. And when you sandbag cases, or sandbag arguments, or sandbag authority, you deprive the court from having the full benefit of argument on that issue that the court will then have to decide. It's also critical that you uphold decorum when you're handling an appeal. You don't wanna see something like what the Fourth Circuit wrote about a lawyer in the United States versus Venable case. The court wrote, "We feel compelled to note that advocates, including government lawyers, do themselves a disservice when their briefs contain disrespectful or uncivil language directed against the district court, opposing counsel, parties or witnesses." And the court in Venable said that the government's brief was replete with that kind of language. So, what was in that brief? Well, in that brief, the government had cast dispersions on the district court's quote "Abrupt handling" end quote of the defendant's first case. The brief sarcastically referred to counsel's quote, "Newfound appreciation for the defendant's mental abilities." End quote. The brief described the district court opinion as quote, "A crabby and complaining reaction." End quote. The brief insinuated that the district court's concerns quote, "Require a belief in the absurd that is similar in kind to embracing paranormal conspiracy theories." End quote. And for good measure, it wasn't only the district court that was criticized in the government's brief, but the brief also accused the defendant of being a quote, "A charlatan." End quote. And quote, "Exploiting his identity as an African American." End quote. That was inappropriate and unsurprisingly, the Venable court called out the government for filing that type of brief. The reality is that lawyers have a duty to maintain the respect due to the courts and judicial officers. An attorney commits contempt when he impugns the integrity of the court. And that includes not only statements that are made in open court, but also statements that are made in writing. It should go without saying that language that is insulting towards the lower court or frankly, any judicial officer, is unethical. There is a need for respect and decorum. It doesn't mean that you don't vigorously advocate for your client. Of course you do. Counsel has a right to press a legitimate argument and to protest error by a district court or trial court below, but you have to do so in a respectful way. So, what are some best practices? Well, first completely avoid ad hominem or personal attacks on opposing counsel or the parties, or the court. Be fair when you characterize the opposing side's arguments. Keep all parties engaged and in the loop, including pro se litigants, even where that's difficult and requires some extra effort on your part. In general, avoid making any prejudicial, extrajudicial statements about a pending appeal. And at all times, maintain a professional and respectful tone. In closing, never lose sight of your unique role in the legal justice system. As the North Carolina Supreme Court said back in 1884, in the Brooks versus Brooks case, "It's a sad mistake to suppose that the practice of law is a game of hazard to be won by shift, subterfuge, deception and dissembling. On the contrary, the law requires those who practice in its courts, the strictest and most delicate observance of candor, truth, integrity, justice, and fair dealing in the conduct of all legal proceedings in and out of court." And that rings just as true in the appellate context as it does when we're talking about trial-level litigation. Thank you. And that brings us to the conclusion of this presentation.

Presenter(s)

VFJ
Veronica Finkelstein, JD
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

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