Ethics and Professionalism on Appeal
In this article, I will use the terms “ethics” and “professionalism” to mean two different (although, at times, overlapping) concepts. 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.. . . ’”6
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 practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.’”12
Then there is the duty to disclose. Rule Regulating The Florida Bar 4-3.3(a)(2) states that “[a] lawyer shall not knowingly. . . fail to disclose a material fact to a tribunal,” and Rule 4-3.3(a)(3) states that “[a] lawyer shall not knowingly. . . fail 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.”13 It is difficult to comprehend why an appellate court in Florida would find it necessary to “emphasize that all counsel who appear before this court must be truthful and fair in their petitions,”14 or remind us that “an attorney is first an officer of the court, bound to serve the ends of justice with openness, candor and fairness to all.”15 Yet, this occurs with far too much frequency. While Rule 4-3.3(a)(3) requires disclosure only of “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,”16 & #x201c;[p]rinciples of professionalism would suggest the propriety of disclosing decisions of other coordinate courts that are on point, as well.”17 The court is almost certain to find those decisions anyway, and failure to disclose and address them might well cause the court to conclude that the attorney cannot be trusted.
I wrote at the beginning of the article that I would be using the terms “ethics” and “professionalism” to mean two different (although, at times, overlapping) concepts. Certainly, anybody who was guilty of the type of gross ethical transgressions outlined above could not be considered to be practicing professionalism. But there is a great deal more behind the concept of professionalism than merely not violating any ethical rules. What follows are some thoughts on what the concept of professionalism ought to include for appellate practitioners.
When approached regarding the possibility of representation on appeal, a lawyer should be candid with the prospective client — candid about the likelihood of success, the potential cost, and the probable result of success ( i.e., whether a successful appeal will resolve the matter or merely secure a new trial). The lawyer should also discuss with the prospective client the potential benefits of alternative methods of dispute resolution, such as mediation and arbitration, and the possibility of settlement. If retained, the lawyer should keep the client fully informed of the progress of the appeal, objectively evaluating all developments.
Appellate practitioners, like lawyers generally, should treat everybody involved in the process, including parties, their lawyers, and court personnel, with courtesy and respect. I can assure you that it is counterproductive to accuse opposing parties or their lawyers — either in briefs or at oral argument — of fabricating evidence or of lying to or defrauding the court, or to denigrate the arguments made in opposing briefs.18 At oral argument, lawyers should listen carefully to questions asked by panel members and endeavor to answer them to the best of their abilities. It is not a good idea to respond to the questioning judge by saying that you will get to that point later in your argument for many reasons, which should be obvious.
In written materials submitted to the court, never misstate or distort any representation of fact or statement of law. Not only is it unprofessional to do so, but that practice will inevitably cause opposing counsel and the court to lose respect for the offending lawyer.
Written submissions and oral arguments should reflect that the lawyer has thoroughly prepared the case, devoting the time necessary to become familiar with the facts and the applicable law. Judges do not look favorably on arguments made by a lawyer who knows less about the record than they do. In this same vein, written submissions should reflect that they have been proofread: They should be free of obvious typographical errors and grammatical mistakes. Sloppily written submissions do little to impress the judges who have to read them.
Appellate practitioners should avoid excessive motion practice. Before filing a motion, a lawyer should ask, “Is this motion really necessary?” and, “What do I hope to accomplish by filing it?” More often than not, appellate motions are utterly unnecessary, and their sole effect is to multiply the proceedings, adding to the time and cost for all involved.19
Attorneys considering filing a notice of supplemental authority should bear in mind that such notices are intended primarily to provide a means for practitioners to bring to the court’s attention decisions issued after the filing of their last brief. Although it is also permissible to use this vehicle to bring to the court’s attention decisions previously overlooked, it should not be used “to submit what amounts to an additional brief. . . or to ambush an opponent by deliberately withholding significant case citations until just before oral argument.”20 Such practice demonstrates disrespect for opposing counsel and the court.
Perhaps the most abused appellate procedure is the motion for rehearing.21 In 1958, Judge Wiggington explained the purpose of a motion for rehearing:
The sole and only purpose of a petition for rehearing is to call to the attention of the court some fact, precedent or rule of law which the court has overlooked in rendering its decision.. . .
[I]t is not the function of a petition for rehearing to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already discussed in briefs and oral argument and necessarily considered by the court, or to request the court to change its mind. . . . 22
It is likewise not intended to permit argument for the first time of matters not raised in the briefs.23 And a motion for rehearing is certainly not “an open invitation for an unhappy litigant or attorney. . . to discuss the bottomless depth of the displeasure that one might feel toward th[e] judicial body. . . . ”24 Yet, despite repeated admonitions to lawyers,25 and even threats of sanctions,26 the practice continues.
So, how does an appellate practitioner avoid running afoul of ethical precepts or the constraints of professionalism? As far as ethics are concerned, the answer is easy. A lawyer concerned about a potential ethical violation need only look to Chapter 4 of the Rules Regulating The Florida Bar.27 Questions about professionalism, however, are not so easily resolved. While written guides for professional conduct exist,28 they tend to be very general. Perhaps the best advice I can give to attorneys is to remember a few basic tenets of professionalism: As officers of the court, their first duty is to the justice system; they should strive every day to do their best as lawyers, and they should follow “the golden rule,” always treating others as they would like to be treated.
1 See Vandenberghe v. Poole, 163 So. 2d 51, 51 (Fla. 2d D.C.A. 1964) (striking a petition for rehearing).
2 See 5-H Corp. v. Padovano, 708 So. 2d 244, 245 (Fla. 1997).
3 See R. Regulating The Fla. Bar 4-8.2(a).
4 See 5-H Corp, 708 So. 2d at 246 (quoting Oath of Admission).
5 See Thomas v. Patton, 939 So. 2d 139, 141 (Fla. 1st D.C.A. 2006).
6 See Shortes v. Hill, 860 So. 2d 1, 3 (Fla. 5th D.C.A. 2003). The court said that “[w]hat makes this otherwise unremarkable case noteworthy are the vitriolic comments about the trial judge contained in the appellate brief filed by [appellant’s] attorney.” Id. at 2.
7 Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005) (quoting Lingle v. Dion, 776 So. 2d 1073, 1078 (Fla. 4th D.C.A. 2001)).
8 See Rapid Credit Corp. v. Sunset Park Ctr., Ltd., 566 So. 2d 810, 812 n.1 (Fla. 3d D.C.A. 1990) (Schwartz, C.J., specially concurring). See also Peter T. Fay, Officers of the Court, 60 Fla. Bar J. 9, 12 (Dec. 1986) (“Attorneys’ first, primary and overriding loyalty must be to the system. An attorney must be an ‘officer of the court’ before he even meets a client and he must remain so throughout his relationship with that client.. . . The client is entitled to sound, honest legal advice — but nothing more!”).
9 See R. Regulating The Fla. Bar 4-3.1.
10 See De Vaux v. Westwood Baptist Church, 953 So. 2d 677, 683 (Fla. 1st D.C.A. 2007) (commenting upon the duty not to file a frivolous appeal); Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482, 492 (Fla. 3d D.C.A. 2000) (same); Boca Burger, Inc., 912 So. 2d at 571-72 (describing the duty to concede error in appropriate circumstances).
11 See Visoly, 768 So. at 492. The court also said that “[a]s officers of the court and members of the bar, attorneys have an ethical and professional responsibility to withdraw from representation rather than to pursue a frivolous appeal.” Id.
12 See De Vaux, 953 So. 2d at 685 (quoting Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1202 (7th Cir. 1987)).
13 See R. Regulating The Fla. Bar 4-3.3(a)(2) and (3).
14 See Hays v. Johnson, 566 So. 2d 260, 261 (Fla. 5th D.C.A. 1990) (citing Hutchins v. Hutchins, 501 So. 2d 722 (Fla. 5th D.C.A. 1987)), review denied, 576 So. 2d 287 (Fla. 1991).
15 See Hays, 566 So. 2d at 261 (citing State ex rel. Fla. Bar v. Murrell, 74 So. 2d 221, 226 (Fla. 1954)). See also Newberger v. Newberger, 311 So. 2d 176, 176-77 n.1 (Fla. 4th D.C.A. 1975). In Newberger, the court noted that counsel for appellee had cited one of its previous decisions, as well as decisions from other districts that reached a contrary result, without pointing that fact out or acknowledging that the court’s decision had expressly rejected the decisions from the other districts. Id. The court said, “While we are confident that this omission was inadvertent[,] we would call attention to the responsibility of counsel to fully inform the court on the applicable law whether favorable or adverse to the position of his client in order that the court is better able to make a fair and accurate determination of the matter before it.” Id. (citing Ethical Consideration 7-23 of the Code of Professional Responsibility then in effect).
16 See R. Regulating The Fla. Bar 4-3.3(a)(3).
17 See Williams v. State, 35 Fla. L. Weekly D1546, 1547 (Fla. 1st D.C.A. July 13, 2010) (Webster, J., concurring in result only).
18 See Thomas v. Patton, 939 So. 2d 139, 142 (Fla. 1st D.C.A. 2006). See also 5-H Corp., 708 So. 2d at 244.
19 See Dubowitz v. Century Village East, Inc., 381 So. 2d 252, 253 (Fla. 4th D.C.A. 1979), where the court said that it was “being deluged. . . with a plethora of pleadings which have no place in any appellate court and which are causing a distressing waste of time. We are in truth suffering from acute motion sickness.” The problem has only grown more serious in the 31 years since that opinion was written.
20 See Ogden Allied Servs. v. Panesso, 619 So. 2d 1023, 1024 (Fla. 1st D.C.A. 1993) (striking, on the court’s own motion, a notice of supplemental authority served and filed by appellee’s counsel on the eve of oral argument, which had attached 22 cases, totaling 125 pages, all of which had been decided before appellee’s answer brief was filed and were, “at best, peripherally related to the issue presented on appeal,” and also striking a notice filed in response on the morning of oral argument by appellants’ counsel).
21 See Jackson v. U. S. Aviation Underwriters, Inc., 466 So. 2d 1119, 1119 (Fla. 2d D.C.A.) (stating that “Rule 9.330 continues to occupy a singular status of abuse”), dismissed, 472 So. 2d 1181 (Fla. 1985); Parker v. Baker, 499 So. 2d 843, 847-48 (Fla. 2d D.C.A. 1986) (quoting Jackson); Elliott v. Elliott, 648 So. 2d 135, 135-36 (Fla. 4th D.C.A. 1994).
22 See State v. Green, 105 So. 2d 817, 818-19 (Fla. 1st D.C.A. 1958), cert. discharged, 112 So. 2d 571 (Fla. 1959).
23 See Ayer v. Bush, 775 So. 2d 368, 370 (Fla. 4th D.C.A. 2000).
24 See Ayala v. Gonzalez, 984 So. 2d 523, 526 (Fla. 5th D.C.A. 2008). See also 5-H Corp., 708 So. 2d at 244-45; Elliott, 648 So. 2d at 135; Vandenberghe, 163 So. 2d at 51.
25 See, e.g., Ayala, 984 So. at 526; Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100, 1100 (Fla. 4th D.C.A. 1993); Seslow v. Seslow, 625 So. 2d 1248, 1248 (Fla. 4th D.C.A. 1993); Taylor v. Johnson, 581 So. 2d 1333, 1338 (Fla. 1st D.C.A. 1991).
26 See Ayala, 984 So. 2d at 526; Reitzes, 631 So. 2d at 1101.
27 See R. Regulating The Fla. Bar, Ch. 4 (“Rules of Professional Conduct”).
28 See, e.g., Guidelines of Professional Conduct adopted by The Florida Bar Trial Lawyers Section, /tfb/TFBProfess.nsf/5d2a29f983dc81ef85256709006a486a/2f2668cdfd7b99e085256b2f006ccd15?; American Inns of Court, Professional Creed, http://www.innsofcourt.org/content/default.aspx?Id=141.
Judge Peter D. Webster has been a judge for 25 years. He served for six years as a circuit judge in the Fourth Judicial Circuit and, since November 1991, he has been a member of the First District Court of Appeal. He is also a member of the Supreme Court Professionalism Commission.
This column is submitted on behalf of the Appellate Practice Section, Raoul G. Cantero III, chair, Kristin A. Norse, editor, and Brandon Christian, assistant editor.