CHAPTER 17 Appellate Ethics

• Jurisdiction: United States

CHAPTER 17

Appellate Ethics

17-1 Introduction

Like all lawyers, advocates practicing in Texas appellate courts are bound by the Texas Disciplinary Rules of Professional Conduct, and guided by the Texas Lawyer's Creed. So why are the ethical expectations of lawyers practicing in appellate courts addressed here as a separate topic? Because Texas appellate courts have developed a culture in which a higher degree of ethical conduct is expected, one characterized by greater civility, decorum, and candor than is typically seen in the trial courts.

This cultural difference between trial courts and appellate courts is not necessarily a reflection of the different personalities of those who choose those respective specialty areas. It is more a function of the different roles that counsel play in the different levels of the litigation process.

The outcome of a trial often depends on a jury making credibility determinations to resolve disputed facts. One of the best ways to persuade the jury that the other side's version of disputed facts is not credible is to attack the credibility of the person presenting those facts: opposing counsel. Persuading the jury that your position is more believable often involves questioning the character and credibility of the person advocating the opposite position.

However, on appeal credibility determinations already have been made in the trial court, and are given great deference. The primary emphasis becomes applying the law, given the facts found by the jury or trial judge. Appellate courts consider this process a more intellectual, scholarly exercise. They view the advocates' function as assisting the court in arriving at a just result in that case, as expressed in a written opinion that may affect outcomes in future cases. Attacking opposing counsel, or attempting to manipulate the court through inaccurate or incomplete representations about the appellate record or the applicable law, is not perceived as acceptable zealous advocacy. Rather, it is perceived as irrelevant or inappropriate at best, or unethical and counter-productive at worst. Attorneys who do not appreciate this fundamental characteristic of the appellate culture are doing a disservice to themselves and their clients.

17-2 The Standards for Appellate Conduct

As a reflection of the appellate bar's heightened sensitivity to ethics and professionalism, in 1999 the Texas Supreme Court and the Texas Court of Criminal Appeals jointly promulgated the Standards for Appellate Conduct (the Standards). The adoption of the Standards made Texas the first jurisdiction in the country to endorse ethical standards specifically applicable to appellate courts.

17-2:1 History

17-2:1.1 Genesis

In 1999, the Texas Supreme Court and Texas Court of Criminal Appeals jointly promulgated The Texas Lawyer's Creed—A Mandate for Professionalism. Largely a response to the rise of "Rambo litigation tactics" among trial lawyers in the 1980s, the Creed was specifically tailored to a trial court litigation practice.

At the same time, appellate CLE courses began featuring presentations on ethical issues unique to an appellate practice. The adoption of the Creed for trial lawyers and the treatment of similar issues in appellate CLE courses triggered discussions among appellate lawyers about whether it might be useful to have a similar body of guidelines aimed at an appellate practice.

In 1995, the State Bar of Texas Appellate Practice and Advocacy Section formed an "Appellate Lawyers' Creed Committee," charged with drafting standards for professional conduct in the appellate courts.¹

17-2:1.2 Drafting

The Committee began by considering the sources and motivations for unprofessional conduct, the reasons that conduct seems to be less prevalent in the appellate courts, examples of unprofessionalism in appellate courts, and how best to address the problem. The primary theme that emerged from those discussions was that unprofessional conduct is often justified by lawyers as fulfilling a duty to zealously represent their clients. This view fails to recognize that lawyers have multiple duties, not only to their clients, but also to the court system and to opposing counsel. The essence of professionalism is the balancing of these conflicting duties. This concept is articulated in the preamble to the Standards, and is further underscored in the structure of the document, which is ordered around the separate duties owed by appellate counsel and the courts.

The Committee also studied approximately 40 standards for professionalism adopted in other jurisdictions, including states, counties, and the Seventh Circuit. In doing so, the Committee realized that all of these standards targeted litigation in the trial courts, and none specifically addressed appellate ethical issues.

The Committee eventually completed a final draft of what it called "Standards for Appellate Conduct." It submitted the draft to the Council of the Appellate Practice and Advocacy Section of the State Bar of Texas, and the Council approved the draft in August 1996.

17-2:1.3 Promulgation Process

The Standards were provided to, and comments solicited from, every judge in Texas, trial and appellate, state and federal, and all former appellate Chief Justices. They also were sent to representatives of every State Bar Section, to former members of the Texas Lawyers Creed Committee, the State Bar's General Counsel, and various local bar leaders.

Comments were received from around the State, mostly favorable, and minor changes were made. After this process, the State Bar Board of Directors, unanimously approved the Standards for Appellate Conduct, and the Standards were submitted to the Texas Supreme Court and the Texas Court of Criminal Appeals. Those courts then studied and discussed the Standards. On February 1, 1999, the Texas Supreme Court and Texas Court of Criminal Appeals issued an order jointly promulgating the Standards for Appellate Conduct for all Texas appellate courts.

17-2:1.4 Place in History

The Standards for Appellate Conduct are the first ethical guidelines in the United States specifically targeting practice in the appellate courts. As of this writing, no other jurisdiction has followed suit, though appellate lawyers from some jurisdictions have requested copies or the standards and appear to be considering something similar.

17-2:2 Philosophy of the Standards

17-2:2.1 Balancing Conflicting Duties

The drafters of the Standards recognized that unprofessional conduct often arises because of the tendency to overemphasize one duty to the exclusion of others. This principle is expressed in the preamble to the Standards:

Problems that arise when duties conflict can be resolved through understanding the nature and extent of a lawyer's respective duties, avoiding the tendency to emphasize a particular duty at the expense of others, and detached common sense. To that end, the following standards of conduct for appellate lawyers are set forth by reference to the duties owed by every appellate practitioner.²

17-2:2.2 Suggestions for Civility, Not a Tool for Sanctions

The Committee felt strongly that the Standards not be used as a hammer to increase contentious bickering between appellate lawyers. Accordingly, it included a provision in the preamble prohibiting the offensive use of the standards. "Use of these standards for appellate conduct as a basis for motions for sanctions, civil liability or litigation would be contrary to their intended purpose and shall not be permitted."³ Despite this clear admonition, some litigants have attempted, without success, to use the Standards as a tool for obtaining sanctions.⁴

17-2:2.3 Duty to Educate Clients About Standards

The drafters of the Standards wanted to avoid the possibility of appellate...