Academic journal article The Review of Litigation

Appellate Ethics: Truth, Criticism, and Consequences

Academic journal article The Review of Litigation

Appellate Ethics: Truth, Criticism, and Consequences

Article excerpt


'"Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or law supported its decision).'"1 The Indiana Supreme Court in In re Wilkins, better known as Wilkins I, suspended veteran appellate advocate Michael A. Wilkins from practice for allowing that language-which the Indiana Supreme Court labeled a "scurrilous and intemperate attack on the integrity" of the Indiana Court of Appeals2-to appear in a footnote of a brief.3 The court reasoned that Wilkins violated Indiana Rule of Professional Conduct 8.2(a), which provides in pertinent part that a lawyer '"shall not make a statement that the lawyer knows to be false or with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge.'"4

The court later reduced Wilkins's suspension to a public reprimand in a case referred to here as Wilkins II.5 Even so, the court declined to retreat from its finding that Wilkins violated Rule 8.2(a).6 In holding firm, the court observed that, although lawyers are free to criticize judges, "they are not free to make recklessly false claims about a judge's integrity."7

Wilkins I and Wilkins II may represent extreme judicial hubris, or they might illustrate only that judges can overreact. Maybe the Indiana Supreme Court simply lost all patience with seriously flawed briefing; if so, it would neither be the first time that had happened, 8 nor would the Indiana Supreme Court be the first to find an ethical violation in a lawyer's poorly written advocacy.9 In In re Shepperson,10 for example, the Vermont Supreme Court suspended a lawyer who "disserved his clients by preparing inadequate and incomprehensible legal briefs."11 As the court explained:

[B]etween 1985 and 1992 respondent repeatedly submitted legal briefs to this Court that were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantial legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.12

It also is possible that Wilkins I and Wilkins II, though by any measure unwise decisions,13 simply illustrate that the ethical bounds of zealous advocacy constrain appellate practitioners just as they do trial lawyers. The fact that the Indiana Supreme Court poorly drew the ethical lines in the case before it does not change this basic lesson. Appellate advocates, who perhaps think themselves removed from the ethical dilemmas that surface in the relatively rough-and-tumble world of trial practice, must be sensitive to their professional duties.14

This Article examines the principal professional responsibility issues confronting appellate lawyers, thus focusing on lawyers' duty of candor and on their criticism of courts and authority. In doing so, the Article primarily examines lawyers' obligations under the American Bar Association's (ABA) Model Rules of Professional Conduct,15 with some limited discussion of the Model Code of Professional Responsibility.16 Of course, the ABA substantially amended a number of the Model Rules as part of its Ethics 2000 initiative.17 Whether individual states will adopt some or all of the amendments is yet to be determined. '8 Accordingly, this Article discusses both the applicable Model Rules as they have been adopted in most jurisdictions,19 as well as the Ethics 2000 changes, to the extent appropriate.

There certainly is no shortage of case law to discuss, regardless of whether the issue is appellate lawyers' lack of candor or the poison pens with which they write their briefs. …

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