IV. Frivolous Appeals and Other Bad Faith Litigation
Library | Professional Responsibility in Litigation (ABA) (2016 Ed.) |
IV. Frivolous Appeals and Other Bad Faith Litigation
"It is the obligation of any lawyer—whether privately retained or publicly appointed— not to clog the courts with frivolous motions or appeals."237 Similarly, lawyers and parties may be sanctioned for pursuing appeals for improper purposes apart from frivolousness.238 In either regard, many appellate lawyers would be well advised to heed the colorful advice of one federal court of appeals (a quotation of a Nobel Peace Prize winner) that "[a]bout half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop."239
A. Model Rule 3.1 and Similar Restrictions Apply Equally to Appeals
Model Rule 3.1, which establishes lawyers' duty to advocate only meritorious claims and contentions, applies equally to litigation at all phases or stages. That rule provides, in pertinent part, that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law."240 Although Model Rule 3.1's use of terms such as "bring" and "assert" perhaps superficially suggests that the rule applies only at the outset of a proceeding in either a trial or appellate court, that is not the case. Lawyers' duties under Model Rule 3.1 are continuous; they exist throughout the life of a case.241 Thus, a lawyer must be prepared to abandon claims or issues that initially seemed to be valid but that are later determined to be frivolous. Whether a lawyer has a basis for bringing or continuing a proceeding or an issue therein that is not frivolous under Rule 3.1 is generally measured by an objective "reasonable attorney" standard.242Thus, a lawyer cannot avoid discipline under this standard by claiming, for example, to have been mistaken about what was actually settled law.243 Nevertheless, as is clearly indicated by the language of the rule itself regarding arguments for "extension, modification, or reversal of existing law," not every meritless claim or contention is frivolous under this rule.244 And, although the use of "good faith" suggests that the lawyer's efforts at, for example, reversing existing law could be viewed through a subjective lens, the standard used by courts means that determining whether a violation has occurred remains an objective one.245 For example, a lawyer cannot defend her conduct as involving a good faith attempt to offer a novel argument when a reasonable lawyer, knowing the facts, would conclude that the argument was frivolous.246
The impact of this ethical obligation on appellate litigation means that a lawyer cannot undertake a doubtful appeal as a matter of reflex but must ensure through research and analysis of the record that pursuing an appeal would not be a frivolous act.247 There are, perhaps, few examples that present a more compelling picture of undertaking a frivolous appeal as a matter of reflex than the appeal pursued by a Wisconsin attorney that resulted in an award of appellate sanctions under Federal Rule of Appellate Procedure 38 and also contributed to the attorney's suspension from the practice of law for two months.248
As explained in Jimenez v. Madison Area Technical College,249 William J. Nunnery's representation of Elvira Jimenez began with a workers' compensation claim against her employer, Madison Area Technical College, based on Jimenez's assertion that college administrators had racially and sexually harassed her, causing her severe emotional distress. To support her claim, Jimenez produced a series of e-mails containing derogatory racial comments about her and discussing the sexual harassment visited upon her.250In response, the college provided sworn statements from each of the purported authors of the e-mails denying having written them and characterizing them as a "complete fabrication" and a "forgery."251 The college asked Nunnery to produce the originals of the e-mails. Nunnery did not do so and, ultimately, Jimenez's workers' compensation claim was denied, and she was subsequently fired by the college.252
Jimenez, still represented by Nunnery, sued the college for discrimination in federal court. In a subsequent amended complaint, Nunnery added the purported authors of the e-mails as defendants. After that complaint was dismissed for failure to state a claim, Nunnery filed a second amended complaint that expanded the factual allegations and that specifically referred to the challenged e-mails produced in the unsuccessful workers' compensation action.253 Jimenez insisted that the e-mails were authentic even though they were "plastic-laminated"; she had the documents laminated, she said, to "prevent them from being stolen."254 The attorneys for the college again communicated to Nunnery that the individual defendants denied authoring any of the emails. When Nunnery would not drop the claims against the individuals, the college moved for Rule 11 sanctions.255
The district court, after holding an evidentiary hearing, determined that sanctions should be imposed. The district court dismissed Jimenez's case and ordered Nunnery to pay more than $16,000 to the defendants for what the court described as "truly, and without competition, the most blatant case of a Rule 11 violation [it had ever] seen."256The district court also found the purported e-mails to be "obviously fraudulent documents" and found incredible Nunnery's claim that whether the e-mails were legitimate "was a judgment call" and that he could wait until taking "depositions to test the credibility of the various letters and e-mails."257
On appeal, the Seventh Circuit determined that the district court's ruling was well within its discretion and further concluded that Jimenez had knowingly manufactured the false e-mail evidence to try to support her claim, and "exploited the judicial process and subjected her former colleagues and employer to unnecessary embarrassment and mental anguish."258 The Seventh Circuit affirmed the district court's dismissal of Jimenez's discrimination claims. The court did not finish there, however, because the college also filed a motion for sanctions for the filing of a frivolous appeal. The Seventh Circuit granted that motion and awarded the college its fees and costs incurred in defending the appeal, with the amount to be determined through further proceedings. In so holding, the Seventh Circuit described the appeal as "a veritable attack on our system of justice."259 The Seventh Circuit's explanation of why frivolous appeal sanctions were so warranted paints an amazing picture of exactly what Nunnery signed off on in taking the appeal: "The foreordination of Jimenez's failure on appeal could not have been more obvious. Not only did Jimenez cite to the wrong legal standard in her brief before this [c]ourt, she presented only one page of legal argument in her favor."260
Courts that determine that an attorney cooperated with a client in a frivolous appeal will not only impose statutory damages and penalties, but may also refer the attorney to disciplinary authorities,261 as the California Court of Appeals demonstrated in In re Marriage of Gong and Kwong.262 In Gong, the court dismissed Terry Kwong's frivolous appeal, awarded sanctions of over $20,000, remanded to the trial court for a determination of the appropriate amount of reasonable attorneys' fees to award to Monica Gong for having to defend the appeal, and ordered the attorneys involved to forward a copy of the court's opinion to the State Bar of California.263
This dispute between former spouses arose after Mr. Kwong failed for several years to make required child support payments pursuant to a marital settlement agreement, and a court order was entered to cause payments to be made to Ms. Gong directly from a partnership interest of Mr. Kwong's. Mr. Kwong, represented by counsel, moved to halt those payments on the alleged basis that he had already paid $30,000 more than he owed.264 Mr. Kwong's argument in that regard, however, was based entirely upon an effort to take advantage of the fact that some nine months elapsed between when the amount of the arrearages was determined by the trial court after a hearing and the date that the court's written order memorializing its ruling was entered. In short, Mr. Kwong, with the assistance of his counsel, argued that the use of the words "current" and "now" in the written order memorializing the court's ruling from nine months earlier had the effect of freeing him from any child support obligation during that nine-month period.265 The court found Mr. Kwong's appeal to be "meritless and objectively frivolous" and pursued solely for the purpose of delay, because the reading urged by Mr. Kwong went "against common sense" such that "no reasonable attorney would so interpret" the order.266 The court, in addition to the disciplinary referral, offered a few choice words for Mr. Kwong's lawyers:
An inference of willingness to assist Mr. Kwong's harassment of Ms. Gong and to abuse the court's processes could be drawn from his counsels' sophistry and their litigation tactics, which went beyond proper advocacy and common sense. Mr. Kwong's attorneys have taken a phrase or two from [the trial court's] order and fashioned from them an argument that subverts that court's intent. . . . "As a professional, counsel has a professional responsibility not to pursue an appeal that is frivolous or taken for the purposes of delay, just because the client instructs him or her to do so. Under such circumstances, the high ethical and professional standards of a member of the bar and an officer of the court require the attorney to inform the client that the attorney's professional responsibility precludes him or her from pursuing such an appeal, and to withdraw from the representation of the client."267
With respect to Model Rule 3.1...
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