Thinking Ethics: Competence and Diligence on Appeal

• Citation: Vol. 84 No. 5 Pg. 14
• Pages: 14
• Publication year: 2015

Thinking Ethics: Competence and Diligence on Appeal No. 84 J. Kan. Bar Assn 5, 14 (2015) Kansas Bar Journal May, 2015

Thinking ethics Competence and Diligence on Appeal

By Hon. Steve Leben

Why do people hire lawyers? One very good reason is that there are lots of technical hurdles a person must navigate just to get a claim heard on its merits. A lawyer is trained to handle them; a layperson is not.

So one of the most basic concepts of lawyer competence is making sure that your client's claims are not lost by your procedural error. When that happens, it's hard to argue that the lawyer has shown the competence and diligence required of attorneys in the ethics rules: Rule 1.1 on competence requires that the lawyer have "the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Rule 1.3 on diligence requires that the lawyer "act with reasonable diligence and promptness in representing a client."

I've spent my last eight years doing appellate work, so I'm going to focus in this column on situations in which lawyers have lost appellate cases or claims solely based on a lawyer's procedural error. Although these examples come from the appellate world, there are lessons for most every lawyer.

Let's start with a potential $40 million mistake.^[1] A federal jury in Texas ruled against AT&T in a patent-infringement suit, and the total of damages, interest, and court costs totaled about $40 million. But AT&T lost its right to appeal when 18 different lawyers or legal assistants failed to open and read the district court's order that denied AT&T's four post-trial motions for a judgment as a matter of law.

How could 18 different folks—most with the respected law firm Sidley Austin LLP—fail to read those orders? Part of the reason was that some (but not all) of the email notices they received from the court had a misleading heading. AT&T's attorneys had filed three of the motions for judgment as a matter of law under seal because they contained confidential information. The subject line of the misleading notices indicated that the attached orders merely granted the motions to file under seal. In fact, the attached orders had granted the motions to file under seal and denied substantive relief, thus ending the litigation and starting the clock on AT&T's 30-day window to appeal.

Another part of the reason surely was that no one person had clear responsibility for reading whatever orders the judge entered. With so many attorneys on the case, no one took the initiative to read the orders.

We all get more emails than we want, and many of us get...