CHAPTER 18 ETHICAL ISSUES IN APPELLATE PRACTICE

• Jurisdiction: Arkansas

CHAPTER 18 ETHICAL ISSUES IN APPELLATE PRACTICE

Grant E. Fortson

A. Introduction

B. Rule 11 Applies to Civil Appeals

1. On a Party's Motion or the Appellate Court's Own Initiative
2. ARAP-Civ 11 has No Safe Harbor
3. Sanctions Authorized by ARAP-Civ 11
4. The Courts' Application of ARAP-Civ 11

C. Other Rules Governing Ethics on Appeal

D. Ethical Issues in the Criminal Appeal

A. Introduction

Lawyers practicing in Arkansas appellate courts must do so with honor and respect for the law and the courts that apply it. Frivolous appeals, meaning ones unfounded in fact or in contravention of well-settled law, or ones filed for an improper purpose (such as to delay or increase the opposing party's costs) dishonor and cast disrespect upon our courts and legal system. In choosing whether to appeal, the issues to argue on appeal, and how the issues will be argued, the appellate lawyer must know ARAP-Civ 11 and the Arkansas Rules of Professional Conduct (ARPC).

Arkansas appellate courts have sanctioned attorneys for various kinds of inappropriate conduct on appeal: arguing facts not in the record, arguing a matter already decided in the same appeal, arguing a matter already decided in a prior appeal between the parties, arguing a matter decided in a prior decision on the same issue, making inconsistent arguments in the circuit court and in the appellate court, and prosecuting an appeal with no factual or legal basis. The courts have consistently used ARAP-Civ 11 as an instrument of discipline and have signaled that they intend to use Rule 11 whenever inappropriate conduct warrants its use. In addition, violations of the ARPC in the context of an appeal can result in a referral to the Arkansas Supreme Court Committee on Professional Conduct.

B. Rule 11 Applies to Civil Appeals

Most practitioners are familiar with ARCP 11, but they may not know that there is a separate Rule 11 for appellate practice. The Arkansas Supreme Court held, in Wright v. Eddinger, 320 Ark. 151, 156-57, 894 S.W.2d 937, 940 (1995), that ARCP 11 does not apply to appeals. Shortly thereafter, the court adopted ARAP-Civ 11. The Court of Appeals has stated that the primary purpose of sanctions under Rule 11 "is to deter future litigation abuse." Bambico v. Ouachita Indus., Inc., 2018 Ark. App. 537, at 4, 564 S.W.3d 534, 536 (denying motion to dismiss appeal as sanction because "we do not believe future litigation abuse is a potential issue here"). Though ARCP 11 is similar to ARAP-Civ 11, the appellate rule has significant differences that every appellate lawyer should know.

1. On a Party's Motion or the Appellate Court's Own Initiative

Like ARCP 11, ARAP-Civ 11 provides that an attorney filing a brief, motion, or other paper in the Arkansas Supreme Court or Court of Appeals certifies, on their own behalf and on behalf of the client, "that, to the best of his knowledge, information and belief formed after reasonable inquiry, the document is well grounded in fact; is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; [and] is not filed for an improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." ARAP-Civ 11(a).

ARAP-Civ 11 may be invoked by a party or an attorney, or by the appellate court on its own initiative. ARAP-Civ 11(d). A party or attorney invokes the rule by filing a motion under ASCR 2-1. Id. The opposing party may file a response within 21 days. Id.

Because the rule authorizes the courts to act on their own initiative, they do not require a motion to invoke ARAP-Civ 11. When the court determines on its own initiative that sanctions may be appropriate, it will issue an order directing the party or attorney to show cause in writing why a sanction should not be imposed on the party, the attorney, or both. ARAP-Civ 11(d). In U.S. Bank, N.A. v. Milburn, the court heeded the appellee's request at oral argument for the entry of sanctions against the appellant and ordered the appellant and its counsel to show cause why a sanction should not be imposed. 352 Ark. 144, 155, 100 S.W.3d 674, 683 (2003). In a supplemental opinion, the court entered sanctions against the party and counsel. U.S. Bank, N.A. v....