By Jeff Michalowski
It is no secret that trial attorneys must navigate ethical minefields as they collect information from their clients, as they engage in discovery, and as they present evidence to judges and juries. Appellate attorneys are somewhat insulated from many of these rules. They may never interact with jurors (see Rule 3.5(e)-(f)), and may never deal with discovery or witnesses (see Rule 3.4(a)-(e)). Appellate attorneys largely inherit their factual records, rather than actively developing them.
But the factual constraints on appellate attorneys can present different questions under the rules of professional conduct. In particular, the duty of candor toward the tribunal—which prohibits knowingly making a false statement of fact or law to a tribunal (see Rule 3.3)—can come into tension with a fundamental principle of appellate advocacy:
When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 365.)
Can the appellate attorney, then, seize upon a fact or document omitted from the record by their adversary, and argue to the court that a fact does not exist, or, as the Protect our Water court put it, that an event “did not happen”? Such conduct could run afoul of Rule 3.3. That rule bars lawyers from “knowingly mak[ing] a false statement of fact or law to a tribunal.” While an appellate attorney can fairly emphasize that there is no evidence in the record to support a contention by their adversary, they should not overreach by suggesting that the absence of information in the record means that it does not exist at all.
The same is true of legal missteps by adversaries. If an adversary fails to cite a controlling case, the attorney may not ignore that omission. Rather, Rule 3.3(b) requires counsel to “disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” If anything, courts of appeal may have higher expectations of candor, given that the slower pace of appellate proceedings gives practitioners ample time to research the law and identify all controlling authority. Failure to cite controlling authority risks violation of Rule 3.3(b), and so too does it risk drawing the ire of the court. (See, e.g., Gonzalez-Servin v. Ford Motor Co. (7th Cir. 2011) 662 F.3d 931, 934–35 [“The ostrich is a noble animal, but not a proper model for an appellate advocate . . . The ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.’”].)
Oral argument can also present challenges. Judges and Justices may be curious about information outside the record, or factual or procedural developments that arose after the record on appeal was finalized. An appellate attorney who faces such questions about extra-record information may address the court’s question directly, but a good practice is to clarify to the Judge or Justice that the information is outside the record. This does not mean that the court is barred from considering the information. (See Cal. Evid. Code § 459 [authorizing judicial notice by reviewing court]; Cal. Code Civ. Proc. § 959 [authorizing reviewing court to take additional evidence].) But appellate counsel should not urge or invite the court of appeal to rely on extra-record evidence, unless it is first incorporated into the record through proper procedures, such as judicial notice or augmentation of the record.
Appellate counsel are advocates, but so too are they officers of the court. They must be mindful of Rule 3.3 in briefing and in oral argument, and must temper their zealous representation with appropriate candor toward the court.
Jeff Michalowski is Appellate Counsel for the County of San Diego.