Copy-and-Paste Brief Violates Federal Appellate Rules

• Pages: 7-7
• Date: 01 January 2024
• Author: William H. Newman
• Subject Matter: Civil Law

federal appeals court ordered

an attorney to pay damages

after he f‌iled a brief that

contained virtually the

same text as his trial court

summary judgment brief. In Conboy v.

U.S. Small Business Administration, the

appellants asked the court to reverse

their loss on summary judgment. But

the court not only armed their loss,

it granted the appellee’s motion for

damages pursuant to Federal Rule

of Appellate Procedure 38 for f‌iling

a frivolous appeal. According to ABA

Litigation Section leaders, this decision

highlights the standards attorneys must

meet when litigating appeals.

In Conboy, the plaintis had bor-

rowed money to renovate a building

and open a bar. When they defaulted

on their loans, they sued their creditors

for various causes of action, including

violations of the Fair Debt Collection

Practices Act and the Pennsylvania

Unfair Trade Practices and Consumer

Protection Law. The defendant credi-

tors moved for summary judgment,

arguing that neither the act nor the law

applied to commercial loans like theirs.

They also moved for sanctions under

Federal Rule of Civil Procedure 11, argu-

ing that the debtors’ claims were mer-

itless since the creditors had notif‌ied

them that the statutes clearly did not

apply to their loans.

The U.S. District Court for the Middle

District of Pennsylvania granted the

creditors’ summary judgment motion,

citing the commercial nature of the

loans. But it denied the sanctions

motion, holding it found “no extraor-

dinary circumstances warranting the

imposition of sanctions[.]”

The debtors appealed, submitting a

brief that virtually repeated their argu-

Copy-and-Paste Brief Violates

Federal Appellate Rules

ment in opposition to summary judg-

ment. The brief was not completely

identical: it replaced the word “plain-

tis” with “appellants,” and “defendant”

with “appellee.” It also changed the

tense of some sentences, like chang-

ing from “summary judgment must be

denied” to “should have been denied.”

But most of the other text stayed

the same. The creditors opposed the

appeal and moved for compensa-

tory damages under Federal Rule of

Appellate Procedure 38 on the grounds

that the debtors’ appeal was frivolous.

The U.S. Court of Appeals for the

Third Circuit armed the trial court’s

dismissal and granted the creditors’

Rule 38 motion. Rule 38 authorizes

compensatory damages to reimburse

appellees who “must defend judgments

against frivolous appeals,” the court

said. It noted that an appellate brief

must explain why the appeals court

should arrive at a dierent conclusion

than the district court. But rather than

doing so, the debtors recycled “merit-

less arguments,” the court explained.

The Third Circuit illustrated how it

was apparent the text of the debtors’

brief was written for the district court.

For example, the brief never explained

how the lower court erred. It also used

the present tense to describe the sta-

tus of the case before the lower court.

And the court noted that the debtors’

brief in opposition to Rule 38 sanctions

was nearly identical to their trial court

brief opposing Rule 11 sanctions. As

emphasis, the court appended a “red-

line” comparison of the debtors’ district

court and appellate briefs to show the

overlap.

The Third Circuit noted that it often

errs on the side of leniency because “even

the best lawyers make mistakes from time

to time.” But it held that “the copy-and-

paste jobs before us ref‌lect a dereliction

of duty, not an honest mistake.”

The Third Circuit declined to order

the debtors themselves to pay Rule 38

damages, reasoning it is the attorney’s

duty to determine whether an appeal

is meritorious. Accordingly, the court

ordered the debtors’ counsel to pay the

creditors’ damages arising from their

defense of the appeal.

Litigation Section leaders note that

Conboy emphasizes appellate brief-

ing principles. The recycled Conboy

brief failed to meet applicable stan-

dards not just because it contained

copied language, but because it did

not respond to the trial court’s decision

and advanced frivolous arguments. For

example, if an appeal is based on a fac-

tual f‌inding, “you need to make a show-

ing of clear error,” says John M. Barkett,

Miami, FL, cochair of the Section’s

Ethics & Professionalism Committee.

And if it is based on a legal issue, “you

need to explain why the district court

was wrong or why there should be a

change in the law,” neither of which the

Conboy plaintis did.

Section Leaders explain that Conboy

does not mean lawyers may not reuse

work from trial briefs in their appel-

late papers. For instance, once the law

in an area is settled, “the courts and

parties know what the relevant stan-

dards are” and “cutting and pasting

could be acceptable on appeal,” states

Judge Nancy F. Atlas, Houston, TX, co-

chair of the Section’s Access to Justice

Committee. “And nothing in Conboy

says that you can’t re-use research,”

says Michael S. LeBo, Newport

Beach, CA, cochair of the Section’s

Professional Liability Litigation

Committee.

By William H. Newman , Litigation News Contributing Editor

WINTER 2024 • VO L. 49 NO. 2

7 | A BA LITIGATION SECTION

Published i n Litigation News Vo lume 49, Numbe r 2, Winter 2024. © 2 024 by the Americ an Bar Assoc iation. Repro duced with perm ission. All r ights reser ved. This infor mation or any por tion thereof

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ETHICS STRU GGLES IN THE LEGAL WORLD