Appealing in Good Faith

• Author: Steven S. Fleischman, Jacob M. Mcintosh
• Pages: 17-22

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Appealing in

Good Faith

STEVEN S. FLEISCHMAN AND JACOB M. MCINTOSH

Steven S. Fleischman is a partner and Jacob M. McIntosh is an appellate fellow at Horvitz & Levy LLP, in Los Angeles.

The preamble to the ABA Model Rules of Professional Conduct

instructs that “[a]s advocate, a lawyer zealously asserts the cli-

ent’s position,” but the preamble makes clear that such advoca-

cy must be done “under the rules of the adversary system.” Yet,

as every reader has probably experienced, many lawyers bend,

break, and ignore our system’s rules under the guise of “zealous

advocacy.” Doing so is especially tempting in the context of ap-

peals, where lawyers may have one final chance to secure a win

in their case.

Overzealous advocacy leading to sanctionable conduct can

occur just as easily in appeals as it does in trials. There is one

important difference, however. Appeals, by their very nature, may

result in published opinions not only making law contrary to the

interests of the lawyer and the client but also potentially embar-

rassing the attorney as well. It is one thing for an overzealous

attorney to be sanctioned $1,000 by a trial court in connection

with a heated abuse of discovery. It is quite another thing to see

a published opinion affirming the sanctions award and award-

ing additional sanctions for a frivolous appeal. If an attorney is

caught litigating an appeal in bad faith for an improper purpose

or violating court rules, the result can be costly sanctions, an em-

barrassing public reprimand that can be cited for the rest of the

lawyer’s career, or both. The most frequent unethical practices

that occur in appeals are filing a frivolous appeal, misrepresent-

ing the law and the facts, and bending or breaking procedural

rules. Easy enough to remember, but knowing these mistakes and

tricks will help ensure you do not commit them unintentionally

and will help you know when opposing counsel might be trying

to pull a fast one.

If you are the appealing party, the first (and most important)

question occurs before you even file the notice of appeal: You

must decide whether your appeal can be filed in good faith.

Specifically, you must consider whether a court would consider

your appeal “frivolous” as defined statutorily and in case law.

Essentially, this boils down to whether there is a potentially

meritorious argument that, given the standard of review, could

result in a reversal of the result in the trial court. If an attorney

has spent considerable time and energy litigating a case in the

trial court only to lose the case in the end, the attorney’s natural

instinct may be to keep fighting. But it is crucial to understand

that not every case (even the one you poured blood, sweat, and

tears into) warrants an appellate challenge. And more importantly,

the attorney who tried the case may be so invested in the case as

to lose perspective. Hence, an attorney should always consider

having a fresh set of eyes evaluate whether to file an appeal, usu-

ally an appellate lawyer.

Filing a frivolous appeal can backfire and incur heavy penalties

for you and your client. For example, Federal Rule of Appellate

Procedure 38 states that if a court of appeals “determines that an

appeal is frivolous, it may... award just damages and single or