Appellate Ethics - Presented by Judge John Daniel Dailey
CLE
February 28, 2018
Time: 5:30 PM - 7:30 PM
Location: Holland & Hart
555 17th Street, Suite 3200
Denver, CO 80202
To Register Click Here
Join us for Appellate Ethics
by
Judge John Daniel Dailey,
Colorado Court of Appeals
5:30-6:30pm
Happy Hour to Follow
1 hour Ethics CLE Applied for
Free to CDLA Members
Non-Members a nominal fee of $50
I. Overview
A. General Reading: Kevin DuBose, Standards for Appellate Conduct Adopted in Texas, 2 J. App. Prac. & Process 191 (2000); Catherine Stone, Appellate Standards of Conduct as Adopted in Texas, 37 St. Mary’s L.J. 1097 (2006).
B. (Most) Pertinent Colorado Rules of Professional Conduct
1.1 - Competence
1.7 - Conflict of Interest: Current Clients
3.1 - Meritorious Claims and Contentions
3.3(a) - Candor Toward the Tribunal
4.4 - Respect for Rights of Third Persons
8.2 - Judicial and Legal Officials
8.4 - Misconduct
II. Competence
A. CRPC: 1.1. “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
B. Anybody can do an appeal, right?
C. “Appellate advocacy is specialized work. It draws upon talents and skills which are far different from those utilized in other facets of practicing law.” Ruggero Aldissert, Winning on Appeal: Better Briefs and Oral Argument § 1.1 at 3 (2d ed. 2003).
D. See, e.g., Carol M. Blast & Susan W. Harrell, Ethical Obligations: Performing Adequate Legal Research and Legal Writing, 29 Nova. L. Rev. 49 (2004)
III. Conflict Of Interest
A. Positional conflicts? CRPC 1.7 cmt.24:
“Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. . . . If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.”
IV. Meritorious Claims and Contentions.
A. Two distinct types of frivolous appeals: (1) frivolous as filed; and (2) frivolous as argued. See, e.g., Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006).
V. Candor to the Court
A. CRPC 3.3(a) has two parts: (1) Don’t knowingly “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal”; and (2) Don’t 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.”
B. False statements?
1. See Douglas R. Richmond, Appellate Ethics, Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (2004).
C. Disclosures of Adverse Authority?
1. “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don’t know the thinking that led the appellants’ counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.’ Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987).” Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011).
2. “We note our significant dismay at counsel’s failure to cite [X] as controlling (or at the very least, persuasive) authority in his opening brief. Although counsel subjectively may have believed that another case was more persuasive, officers of our court have an unfailing duty to bring to our attention the most relevant precedent that bears on the case at hand--both good and bad--of which they are aware.” Jewelpack Corp. v. United States, 297 F.3d 1326, 1333 n.6 (Fed. Cir. 2002).
3. Joseph P. Mastrosimone, Don't Act Like an Ostrich: How to Not Run Afoul of the Duty of Candor, 82- J. Kan. B. Ass’n, May2013, at 14; Francis C. DeLaurentis, When Ethical Worlds Collide: Teaching Novice Legal Writers to Balance The Duties of Zealous Advocacy and Candor to the Tribunal, 7 Drexel L. Rev. 1 (2014); Douglas R. Richmond, Appellate Ethics, Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (2004).
VI. Respect for the Rights of Third Parties
A. “Our Rules of Professional Conduct prohibit discourteous and uncivil behavior toward any person involved in the legal system, including ad hominem attacks on opposing counsel.” PFW, Inc. v. Residences at Little Nell Dev., LLC, 2012 COA 137, ¶ 45. See also Keim v. Douglas Cty. Sch. Dist., 2015 COA 61, ¶ 32 (“Disagreement-even vehement and vigorous disagreement-with a trial court's rulings and with the arguments of an opposing party and counsel are, of course, part and parcel of any litigation matter. Nonetheless, we expect such disagreements to be civil and respectful. The use of rhetoric like that cited above is unpersuasive and unhelpful.”); State ex rel. Coffman v. Vaden Law Firm LLC, 2015 COA 68, ¶ 26 n.9 (“Sarcasm directed at another party has no legitimate place in an appellate brief.”); Martin v. Essrig, 277 P.3d 857, 860 (Colo. App. 2011) (“Such rhetoric hinders the court in deciding the merits of the appeal; we must waste judicial resources hacking through the verbal brush to uncover the substance (if any) of the arguments. It also disserves parties and debases both the legal profession and the judicial system.”).
B. Steven L. Bernard, The Obligation of Attorneys to be Civil on Appeal, 38 Colo. Law., Jan. 2009, at 49); Stuart C. Markman, Responding to Appellate Lawyers Who Cross the Line, 32 Stetson L. Rev. 425 (2003)
VII. Judicial and Legal Officials
A. “To use a colloquialism, ‘You can think it, but You better not say it.’” Vanderberghe v. Poole, 163 So.2d 51, 52 (Fla. Dist. Ct. App. 1964) (Rawls, J., specially concurring).
B. See generallyAnno., Attorney’s Criticism of Judicial Acts as Ground of Disciplinary Action, 12 A.L.R.3d 1408; Brian G. Liegel, A Higher Bar: The Search for Restrictions on Attorney Criticism of Judges on Blogs, 27 Geo. J. Legal Ethics 689 (2014); Margaret Tarkington, Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 B.C. L. Rev. 363 (2010); Steven Wistoky, Incivility and Unprofessionalism on Appeal: Impugning the Integrity of Judges, 7 J. App. Prac. & Process 303 (2006); Douglas R. Richmond, Appellate Ethics, Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (2004).
C. In re Green, 11 P.3d 1078, 1083-87 (Colo. 2000)(discussing First Amendment limits on disciplining an attorney for criticizing a judge); Martin v. Essrig, 277 P.3d 857, 861 n.5 (Colo. App. 2011) (“Tenant’s opening and reply briefs also contain statements which, viewed in context, could be regarded as attacking (without any articulated foundation) the district court's integrity. We caution litigants that such attacks are inappropriate.”).
VIII. Misconduct
A. CRPC 8.4:
It is professional misconduct for a lawyer to:
. . .
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities;
(d) engage in conduct that is prejudicial to the administration of justice;
. . .
(g) engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender bias against a person on account of that person's race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel, witnesses, parties, judges, judicial officers, or any persons involved in the legal process; or
(h) engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer's fitness to practice law.
Sponsored by the:
Construction Law Committee
January Allen, Board Liaison, Overturf McGath & Hull
Bruce Shibles, Co-Chair, Hunter & Associates
Bradshaw Smith, Co-Chair, Senter Goldfarb & Rice
Steve Paul, Co-Vice Chair, Harris, Karstaedt, Jamison & Powers
Haley W. Maglieri, Co-Vice Chair, Messner Reeves
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