Navigating the Ethical Landmines of Handling Your Own Appeal
Paul, Plevin, Sullivan &
Connaughton LLP
No trial attorney is perfect. Even the most prepared and experienced trial attorneys should expect their adversaries to attack not just their clients’ actions and inactions, but also claimed missteps by the trial attorneys themselves. This is especially evident in appeals, where parties regularly argue that issues have been waived or forfeited; that deadlines have bene missed; or decry alleged attorney misconduct in the trial court below.
Occasionally, these arguments are meritorious and dispose of the appeal. Oftentimes, they are not. Either way, such contentions can feel far more personal than arguments about the evidence or the law, and this presents a number of ethical challenges for trial attorneys who handle their own appeals.
First, and most obviously, an attorney has a duty of candor, and must be scrupulously honest in all representations to the court of appeal – in briefing, in any appellate motion practice, and at oral argument. While it may be tempting to minimize or hide one’s mistakes, a knowingly false statement of fact or law – and any failure to correct a false statement of material fact or law previously made to a court – will violate Rule 3.3 of the California Rules of Professional Conduct.1 Misstating or obscuring damaging facts is also not a winning strategy. Attempts to obfuscate, obscure, or misstate matters to the court of appeal will almost certainly do the client more harm than good.
Second, attorneys have a duty of competence under Rule 1.1. Specifically, “a lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” The concept of “competence” is not limited to learning and skill. Rather, it also includes having the “mental, emotional, and physical ability reasonably necessary for the performance of [competent] service.” Rule 1.1(b).
Attorneys whose own conduct has been challenged should ask themselves if they have the mental and emotional wherewithal to put aside their personal interests and instead properly calibrate their advocacy to best serve the client’s interests. Might an attorney be inclined to minimize issues related to one’s own conduct, perhaps giving it less attention than warranted in briefing and in discussions with the client?
Might the attorney be inclined to try to deflect the issue at oral argument? Alternatively, might the attorney grow defensive, and thereby give the issue more attention than it deserves, distracting from more promising arguments?
Attorneys who cannot properly calibrate their approach to an appeal risk running afoul of Rule 1.1. At a minimum, attorneys should be forthcoming with their clients, and should consider consulting with another attorney and seeking an independent review of their briefs before filing, all in an effort to ensure greater objectivity.2
Third, an attorney facing accusations of personal missteps may have a conflict of interest with their client. Although conflicts of interest ordinarily arise when one client’s interests are in conflict with that of another client, the Rules of Professional Conduct have a more expansive understanding of conflicts of interest.
Rule 1.7 bars representation (absent informed written consent) “if there is a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.” Rule 1.7(b) (emphasis supplied). Again, a prudent attorney will not only be forthcoming with his or her own client; he or she will ideally seek an independent review of his or her arguments on appeal. Notably, an attorney may be a particularly poor judge of whether the attorney’s own interests will “materially limit[]” the representation of a client under Rule 1.7(b), which further counsels in favor of seeking an independent and more objective second opinion.
Fourth, and relatedly, attorneys have a duty to reasonably consult with the client about the means by which to accomplish the client’s objectives (Rule 1.4(a)(2)), and to keep the client reasonably informed about significant developments relating to the representation (Rule 1.4(a)(3)). Attorneys who are reluctant to be fully candid and forthcoming with clients about the conduct challenged in an appeal risk falling short of Rule 1.4.
Once the parties emerge from the trenches of a trial, and then have the luxury of time to pore over the transcripts, it is easy enough to identify arguable missteps by one’s adversaries. When faced with such arguments on appeal, a trial attorney should first take a deep breath and understand that opposing counsel is likely just zealously representing their own clients. The attorney should then assess how best to proceed in a manner consistent with their ethical obligation, to both their clients and to the courts.
1 All references are to the California Rules of Professional Conduct.