Ethics and professionalism on appeal.

• Author: Webster, Peter D.
• Position: Appellate Practice

In this article, I will use the terms "ethics" and "professionalism" to mean two different (although, at times, overlapping) concepts. By the term "ethics," I mean that body of rules that establishes a floor for behavior by members of the legal profession. Those rules of conduct are enforced by the threat of sanctions. Lawyers know that if they violate one of those rules (and are caught), they will likely face some sort of punishment. Ethical rules can be taught in law school. Professionalism, on the other hand, is a much more esoteric concept. Think of it as akin to the concepts of manners or civility. Professionalism in this sense can also be taught. I seriously doubt, however, that it can be taught in law school. Like manners and civility, I suspect that if it has not been "hard-wired" into one's psyche at a relatively young age, one will have to blunder through one's professional life without it.

In the appellate process, some things so obviously constitute ethical violations that one would think nobody who has any business practicing law would ever commit them. Unfortunately, that assumption would be wrong.

One would think, for instance, that any lawyer would know better than to include this statement in a motion for rehearing: "This Appellate Court has either ignored the law or is not interested in determining the law." (1) Similarly, one cannot help but wonder how any member of the legal profession could have the audacity to make these offensive comments about opposing counsel's arguments in a motion for rehearing: "[W]hat is truly appalling is that ... the panel in the instant appeal would buy such nonsense and give credence to such 'total b[--]-s[--],"' adding in a footnote that "the use of the term 'total b[---]s-[---]' without the inclusion of at least 2 or 3 intervening expletives is very kind and generous under the circumstances." (2) Rule Regulating The Florida Bar 4-8.2(a) states that "[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge...." (3)

The Oath of Admission to The Florida Bar itself "requires applicants to solemnly swear to 'maintain the respect due to Courts of Justice and Judicial Officers ... [and] abstain from all offensive personality.'" (4)

Yet, we see this sort of language far too frequently. Even more frequent are attacks on lower tribunals. Illustrative are those cases in which an attorney refers to one of the trial court's findings of fact as "[b]aloney" (5) or calls the trial judge's ruling "cockeyed and absurd," declaring that it "demonstrated a 'most startling absence of legal knowledge and irrational decision ...

Another common ethical transgression by appellate counsel is the filing of frivolous appeals. Our Supreme Court has said, "[W]hile counsel does have an obligation to be faithful to [his or her] [client's] lawful objectives, that obligation cannot be used to justify unprofessional conduct by elevating the perceived duty to zealously represent over all other duties." (7) This is because, as an officer of the court, "a lawyer's duty to his calling and to the administration of justice far outweighs--and must outweigh--even his obligation to his client...." (8) Rule Regulating The Florida Bar 4-3.1 states that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law or fact for doing so that is not frivolous...." (9) This rule clearly applies to appeals. (10) Yet we see a significant number of appeals that can only be described as "frivolous," that is, clearly lacking in merit. This is one explanation for the large number of affirmances without opinion by our district courts of appeal.

When requested to prosecute or defend a frivolous position, the attorney "has a duty to advise the client of the potential for sanctions, and that it would be unethical for the attorney to go forward...." (11) As another court has observed, "The filing of an appeal should never be a conditioned reflex. 'About half the...