Appellate Ethics Refresher - Speaking Candidly

By: Justice Evelyn V. Keyes, First Court of Appeals and Angela Spoede, Senior Staff Attorney to Justice Keyes

We all know that, once lost, an attorney’s professional reputation is almost impossible to regain. A lawyer’s bad behavior hurts the client and can cause distortions in the law. At best, it creates confusion and extra expense; at worst, it creates injustice. So, let’s discuss legal ethics in practice in the appellate court.

Remember that lawyers have an ethical duty to disclose “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.” Texas Disciplinary Rule of Professional Conduct 3.03(a)(4). This duty is necessarily narrow – it covers only directly adverse authority from a controlling jurisdiction. But any competent and diligent appellate attorney also knows that her obligations to both her client and the court require paying attention to any previous controlling or persuasive authority directly related to an issue presented to the court. Nevertheless, appellate attorneys regularly fail to point out persuasive authority that, even if not directly adverse, has already addressed the issues presented in the appeal or closely related issues. In doing this, lawyers waste court resources and jeopardize their own cases by leaving judges and their staffs to track down cases that the attorneys should have been aware of and should have presented to the court. To have the court bring these cases up at oral argument or in an opinion can be a lawyer’s worst nightmare—and an opportunity lost to persuade the court in advance as to why the adverse authority must be distinguished. It is much harder to make repairs than to build a sound and thoughtful case in the first place.

Of course, even a good lawyer may be sandbagged. Which is why he should always be ready to respond to a case attack by an opponent or by the court, even if it is to say, “Your honor, we did address that issue in ‘x’ way; I’ll be happy to submit additional briefing.” This can, at times, be his opportunity to turn the case in his favor. But only if he was prepared in the first place.

There is also a corresponding obligation for an appellate attorney to be familiar with the entire record of the case. While Disciplinary Rule of Professional Conduct 3.03(a)(1) requires that “[a] lawyer shall not knowingly . . . make a false statement of material fact or law to a tribunal,” attorneys sometimes forget that they have an obligation to make reasonable inquiries into both the law and the facts relevant to their cases. Investigation and presentation of a case that fails to discover key events or facts that occurred in the trial court can cause the court to take unfavorable notice when those facts and the case law applicable to them are brought up by an opponent or, worse, discovered by the court itself. Courts always read both the record and the briefs. Yet there are attorneys who actually misrepresent the facts in the record to the court (not a good idea). Attorneys appearing for oral argument sometimes attempt to deflect questions about events in the trial or in other related proceedings by stating that they are just appellate counsel and do not know what happened in the trial. Attorneys will discuss their interpretation of a contract or the parties’ intentions in forming it, but will never quote the contract itself or otherwise refer to key language or be able to respond to questions about it—apparently failing to recognize that it is the written language that controls the outcome of their case. Be prepared! And do not expect sympathy from the court when your explanation for any of the lapses above is “I was too busy,” or “I don’t know,” or “I wasn’t asked to look into that.”

Yes, Virginia, there are such instances. At least one attorney has admitted to the court that he failed even to contact his imprisoned client because he did not consider the money paid him by the state for indigent defense to be adequate to permit taking time for such inquiries. See Texas Disciplinary Rule of Professional Conduct 1.03(a) (“A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”). Attorneys have admitted that they did not perform the investigations clearly required to present an adequate case to the court under the applicable law—preventing formation of an adequate appellate record. And attorneys have filed strings of cookie-cutter briefs on the same immaterial or previously adversely settled issue. See Texas Disciplinary Rule of Professional Conduct 1.01 (providing that, generally, lawyer shall not: “accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence”; “neglect a legal matter entrusted to the lawyer”; or “frequently fail to carry out completely the obligations that the lawyer owes to a client or clients”).

Unfortunately, those of you who read this article do not need it, except as affirmation that you are on the right track! A great majority of the appellate bar in Houston conduct themselves under much higher standards of conduct than those minimal standards enforced by the Disciplinary Rules. For those who do need help in this area, the Supreme Court of Texas and intermediate appellate courts, including the First Court of Appeals, have adopted Standards for Appellate Conduct that set an aspirational standard for litigating cases in the appellate courts. For example, “Counsel will explain the appellate process to their clients” and “will not foster clients’ unrealistic expectations.”

The best appellate attorneys abide by these higher standards, including their duty to the court not to “misrepresent, mischaracterize, misquote, or miscite the factual record or legal authority.” They do this, not only because to do otherwise would be unethical, but because such unethical conduct is ultimately unsuccessful and professionally self-defeating. But mostly they do it because they are honorable and caring people who know that they are members of a profession vital to the preservation of the rule of law. Clients are always better served by a thoughtful, organized, clear, and complete brief and oral argument. And by a thoughtful, organized, and, above all, ethical attorney.