Chapter 19 Ethical Issues in Appellate Practice

LibraryHandling Appeals in Arkansas (2021 Ed.)
CHAPTER 19 ETHICAL ISSUES IN APPELLATE PRACTICE
Roger D. Rowe and Grant E. Fortson

A. Introduction

"This time we aren't fighting the Yankees, we're fighting our friends. But remember this, no matter how bitter things get, they're still our friends, and this is still our home."

Atticus Finch in To Kill a Mockingbird.

Atticus Finch swallowed his distaste for criminal law and agreed to defend Tom Robinson, an African-American man accused of raping a white woman, so that the truth would be told. Arkansas appellate lawyers will do well to remember his admonition to his daughter, Scout, about her behavior in response to the attacks of the community. Arkansas is a small state, and we are a small bar. We will live and work together after the present battle, and we will appear again before the judges presiding over the present battle. Enough earth should be left unscorched at the end of the battle for all of us to occupy. But if self-preservation and polity are not sufficient motivators, as Atticus instructed Scout, to fight with our heads rather than our fists, the Arkansas appellate courts have demonstrated that they will use their considerable arsenal to keep us civil.

Beyond civility, however, lawyers practicing in Arkansas appellate courts have an obligation to do so with honor and respect for the law and the courts that apply it. Frivolous appeals, unfounded in fact or in contravention of well-settled law, or appeals 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 issues to argue on appeal, and the means by which he will argue them, the appellate lawyer should familiarize himself with ARAP-Civ 11 and the Arkansas Rules of Professional Conduct.

Arkansas appellate courts have sanctioned attorneys for various kinds of inappropriate conduct on appeal: arguing facts not found 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 the primary instrument of discipline and have signaled that they intend to use Rule 11 in the future against inappropriate conduct. 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. There is a Rule 11 Applicable 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. While similar to the rule of civil procedure, 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 the civil rule, ARAP-Civ 11 provides that an attorney filing a brief, motion, or other paper in the Arkansas Supreme...

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