ETHICS IN
APPELLATE PRACTICE AND LEGAL WRITING
Judge Richard Dietz
North Carolina Court of Appeals
CLE Agenda
The Ethics of Filing an Appeal
Civil Cases ........................................................................................................... 10 minutes
Criminal Cases ....................................................................................................... 5 minutes
Advising Clients about Appeals .......................................................................... 10 minutes
Group Discussion of Advising Clients Hypotheticals .....................................10 minutes
Conflicts of Interest
Issue Conflicts ....................................................................................................... 5 minutes
Group Discussion of Issue Conflicts Hypotheticals ........................................10 minutes
Ineffective Assistance/Malpractice Conflicts ........................................................ 5 minutes
Working with Co-Counsel ..................................................................................... 5 minutes
Duty of Representation and Competence Requirements
Obligation to Represent Client on Appeal........................................................... 15 minutes
Duty of Competence .............................................................................................. 5 minutes
Ethics in Legal Writing
Misstatements vs. Zealous Advocacy.................................................................... 5 minutes
Group Discussion of Misstatements Hypotheticals ........................................10 minutes
Duty to Disclose Adverse Authority ................................................................... 10 minutes
“Cheating” on Word Limits and Formatting ......................................................... 5 minutes
Group Discussion of Formatting Error Hypotheticals ..................................10 minutes
120 Minutes
ETHICS IN APPELLATE PRACTICE AND LEGAL WRITING
The North Carolina Rules of Professional Conduct address the ethical obligations
of lawyers in all manner of legal representation. Very few of these rules expressly
reference the appeals process in litigation, but many of the rules apply directly to the dayto-day work of lawyers who handle appeals. This manuscript address some of the most
common ethical issues likely to arise during the appeals process, and also address ethical
issues that arise generally in the legal writing process.
The Ethics of Filing an Appeal
One of the first things a client is likely to ask after losing a case in the trial court is
whether the client can appeal. One threshold issue for the lawyer is whether an appeal
would be frivolous—and thus ethically impermissible.
The ethical rule governing frivolous appeals appears straightforward—Rule 3.1 of
the Rules of Professional Conduct provides 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.” But there are some complications to applying
this rule in appeals, which are discussed below.
I.
Civil Cases
First, it is important to note that, in civil cases where the client does not have a
constitutional right to counsel, the prohibition on pursuing a frivolous appeal overrides
the client’s desire to file an appeal. Occasionally, a paying client, after being informed
that an appeal is frivolous, will insist on appealing anyway, and will be willing to pay to
do so. If the lawyer concludes that there is no good faith basis to prosecute the client’s
appeal, the lawyer is ethically prohibited from filing an appeal even if the client wants to
do so.
In addition, there are times when, even if the appeal is not frivolous, pursuing it
may raise ethical concerns. Rule 3.2 provides that “[a] lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of the client.” The comment to
Rule 3.2 further explains that delay in concluding litigation will not “be reasonable if
done for the purpose of frustrating an opposing party’s attempt to rightful redress or
repose” and that “[t]he question is whether a competent lawyer acting in good faith
would regard the course of action as having some substantial purpose other than delay.”
Finally, the comment emphasizes that seeking “financial or other benefit from otherwise
improper delay in litigation is not a legitimate interest of the client.”
Simply put, the lawyer is ethically obligated to consider the reason the client
wishes to appeal and take steps to ensure that the appeal is prosecuted in good faith and
not solely to delay in order to gain an advantage for the client.
Also keep in mind that a case that is not frivolous at the trial court level might
become frivolous on appeal. This is because of the often narrow standard of review in
appellate cases. The central issue at the trial level, for example, might be which of two
fact witnesses with conflicting testimony should be believed. If the fact finder at trial
chooses to believe one witness and not the other, that decision ordinarily cannot be
reversed on appeal. The lawyer should carefully examine the basis for appealing, and the
applicable standard of review, to ensure that there is a good faith basis to appeal.
Another potential ethical pitfall involves potentially meritorious arguments not
raised in the trial court. This often arises when the client is seeking new counsel for the
appeal. Ordinarily, issues and arguments not raised in the trial court cannot be asserted
for the first time on appeal. A lawyer seeking to raise new arguments on appeal should
examine the applicable waiver rules to determine whether there is a good faith basis to
assert that the appellate court should consider the arguments notwithstanding the failure
to raise them at the trial level.
II.
Criminal Cases
In criminal cases where the client has a Sixth Amendment right to counsel, there
are additional considerations. As in civil cases, the lawyer is prohibited from advancing
frivolous arguments to the court, even if the client requests it. But, unlike in a civil case,
a lawyer who determines there are no non-frivolous issues to be raised on appeal still
must satisfy certain requirements established in Anders v. California, 386 U.S. 738
(1967) and adopted (for the most part) by North Carolina law. This requires counsel to
submit an Anders brief and to communicate in writing with the defendant to explain that
determination and the client’s right to submit a pro se brief.
III.
Advising Clients About Appeals
Regardless of the subject matter of your appeal, your client likely will have several
key questions, starting with this one: will we win the appeal? Rule 2.1 requires a lawyer
to “exercise independent, professional judgment and render candid advice.” The
comments to the rule recognize that “the lawyer’s responsibility as advisor may include
indicating that more may be involved than strictly legal considerations.” Thus, lawyers
should be prepared to offer accurate advice about the chance for success on appeal
(which, of course, also triggers the duty of competence discussed below). Lawyers also
should be prepared to advise their clients about considerations beyond the “technical”
legal aspects of the appeal, including the potential costs and how those may affect the
client, the impact on the client and the client’s relationships with others involved in the
case, and the likely long-term outcomes of prevailing on appeal, which often have
different implications than short-term success.
GROUP DISCUSSION OF HYPOTHETICAL FACT SCENARIO IN HANDOUTS
Conflicts of Interest
Conflicts of interest in appeals can be more complicated that those at the trial level.
The usual conflict rules still apply and thus, under Rule 1.7 of the Rules of Professional
Conduct, a lawyer cannot take on a representation if “the representation of one client will
be directly adverse to another client.” Importantly, under Rule 1.7(a), a lawyer cannot
represent a client if “the representation of one or more clients may be materially limited
by the lawyer’s responsibilities to another client, a former client, or a third person, or
by a personal interest of the lawyer.”
I.
Issue Conflicts
One type of conflict that is generally unique to appellate litigation is the “issue
conflict.”
Published decisions of the North Carolina Court of Appeals and all decision of the
North Carolina Supreme Court create precedent that must be followed in future cases
presenting indistinguishable facts and legal issues. This creates the possibility that a
lawyer is representing two different clients in two different legal proceedings and
asserting two different—and conflicting—legal arguments in the two cases. At the trial
level, this may not necessarily create a conflict of interest because the lawyer may be able
to assert both arguments on behalf of the two clients and prevail on both arguments
(although there are many ethical pitfalls even at the trial level in this situation).
On appeal, however, the problem for the lawyer is that prevailing on one argument
could result in a precedential opinion that bars the opposing legal argument in future
cases. As a result, the lawyer is in the position of advancing an argument on appeal in
one case that is directly adverse to the interests of another client in a separate case. This
type of “issue conflict” likely precludes the dual representation.
GROUP DISCUSSION OF HYPOTHETICAL FACT SCENARIO IN HANDOUTS
II.
Ineffective Assistance/Malpractice Conflicts
Another type of conflict that is more common in appeals than in trial work is the
ineffective assistance or malpractice conflict.
Rule 1.7 states that a lawyer should not undertake a representation when the
representation “would be materially limited by . . . a personal interest of the lawyer.”
Suppose the lawyer made a series of arguable mistakes at the trial level. Those potential
mistakes may create a personal interest for the lawyer that rises to the level of a conflict
of interest.
For example, in a criminal case where the client has a Sixth Amendment right to
counsel, a mistake by the lawyer at trial may give rise to a constitutional claim of
ineffective assistance of counsel. The need to assert this Sixth Amendment claim on
direct appeal in a way that harms the reputation or interests of the lawyer may require the
lawyer to cease the representation.
Similarly, in a civil case, mistakes by the lawyer may give rise to a civil claim of
legal malpractice. If the adverse decision was affirmed by the appellate court on grounds
that were not impacted by the alleged malpractice, it could provide a defense for the
lawyer on that malpractice claim. This, in turn, creates a potential conflict for the
lawyer, whose interests in having the case decided in a particular manner no longer match
the clients.
III.
Working with Co-Counsel
As with any stage of litigation, lawyers working together must be mindful of
ethical considerations concerning their fees. Rule 1.5 has specific requirements
concerning the division of fees between lawyers at different firms and requires, among
other things, an express agreement to the fee-sharing arrangement which is confirmed by
the client in writing. In addition, co-counsel working together as provided in Rule 1.5
may be ethically responsible for the conduct of their co-counsel. In particular, a lawyer
who “with knowledge of the specific conduct, ratifies the conduct involved” is
responsible for the other lawyer’s ethical violation.
Duty of Representation and Competence Requirements
Even if the case can be appealed consistent with the lawyer’s ethical obligations,
and even if there are no conflicts of interest, there are still ethical considerations for an
attorney on appeal. These include whether the representation agreement covers the
appeal process, and whether the lawyer is competent to handle the appeal process without
assistance.
I.
Obligation to Represent a Client on Appeal
The first issue presented in appellate representation is whether the existing client
relationship obligates the lawyer to continue the representation on appeal. Rule 1.3
provides that “[a] lawyer shall act with reasonable diligence and promptness in
representing a client.” The comments to Rule 1.3 indicate that the duty to act with
reasonable diligence and promptness continues into the appeal process. Comment 4 to
Rule 1.3 states that “[w]hether the lawyer is obligated to prosecute the appeal for the
client depends on the scope of the representation the lawyer has agreed to provide to the
client.” However, the rule also states that “[u]nless the relationship is terminated as
provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken
for a client.” These comments, taken together, indicate that representation of a client
typically will continue into the appeal process unless the representation agreement
provides otherwise.
As a result, lawyers who do not want to represent their clients on appeal may wish
to expressly state this fact in the initial client agreement. Of course, a separate agreement
for representation on appeal can be reached later in the case.
Note, however, that even if the client agreement limits representation to the trial
level only, the lawyer might still be obligated to provide some appellate advice.
Comment 4 to Rule 1.3 provides that “if a lawyer has handled a judicial or administrative
proceeding that produced a result adverse to the client and the lawyer and the client have
not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with
the client about the possibility of appeal before relinquishing responsibility for the
matter.” This is noteworthy because there are a number of critical issues early in the
appeal process, most notably the deadline to file an appeal, that are complex and the
lawyer may be obligated to accurately advise the client about these issues.
GROUP DISCUSSION OF HYPOTHETICAL FACT SCENARIOS IN HANDOUTS
II.
Duty of Competence
A second consideration in determining whether to represent a client on appeal is
whether the lawyer satisfies the duty of competence. Rule 1.1 states that a lawyer “shall
not handle a legal matter that the lawyer knows or should know he or she is not
competent to handle without associating with a lawyer who is competent to handle the
matter. Competent representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation.”
Appeals involve some specialized knowledge that can be acquired only by taking
the time to study and comprehend the (needlessly complex!) Rules of Appellate
Procedure. For example, unlike nearly all time deadlines at the trial level, there are time
deadlines in the appellate process that are jurisdictional—meaning that they cannot be
extended by the court even for good cause shown. This is one of the most common
pitfalls for inexperienced appellate lawyers. In addition, the appeal process involves
other critical steps such as obtaining a stay or filing the necessary undertaking/appeal
bond; preparing the record on appeal; understanding the motions practice and available
extraordinary writs; and preparing a brief conforming to the rules, including required
tables, formatting, and indices. Attorneys unfamiliar with the appeals process should
carefully consider whether associating with more experienced lawyer is necessary to
satisfy the duty of competence.
Ethics in Legal Writing
Legal writing presents its own ethical considerations (and potential ethical pitfalls)
for lawyers.
I.
Misstatements vs. Zealous Advocacy
One common ethical concern in legal writing involves aggressive assertions of
facts or law. Rule 3.3 of the Rules of Professional Conduct states that a lawyer shall not
“make a false statement of material fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer.”
Lawyers are expected to advance their client’s interests, and that means framing
the facts and law in a manner that is favorable to their client. But there is a line between
describing the facts or law in the light most favorable to the client and misstating the facts
or law.
There are a few best practices that can be used to avoid crossing the line into
unethical behavior in legal writing. First, when discussing the facts of the case in
drafting a brief, always provide a citation to the record. This assists the lawyer in later
confirming that the facts are accurate by referencing the portion of the record that
documents that fact. Often, these record citations are appropriately left in the final
version of the brief, because they assist the court in also locating these portions of the
record. If the brief is over length, some record citations (in particular, those that are
already included earlier in the brief) might be removed if absolutely necessary.
Second, cite checking the legal authority in a brief can prevent a lawyer from
misstating the law. Cite checking is more than simply confirming the legal citation is
accurate—it means confirming that the case actually stands for the asserting legal
proposition.
GROUP DISCUSSION OF HYPOTHETICAL FACT SCENARIO IN HANDOUT
II.
Duty to Disclose Adverse Authority
Another common ethical dilemma in legal writing is what to do when a lawyer
discovers adverse authority not addressed by opposing counsel. Rule 3.3 requires a
lawyer 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.”
The challenge is determining what is “controlling” authority. Enterprising counsel
nearly always can find some reason why a particular legal decision is “distinguishable.”
The lawyer must make an honest assessment of potentially adverse authority and
determine whether the arguments for its inapplicability are strong enough to overcome
the duty of candor to the court. In most instances, the ethical course is to disclose the
adverse authority to the court but explain why, in counsel’s view, it is distinguishable or
not controlling.
III.
“Cheating” on Word Limits and Formatting
One final ethical consideration in legal writing arises in courts that have word or
page limits on briefing. Rule 3.4 of the Rules of Professional Conduct states that a
lawyer may not “knowingly disobey . . . an obligation under the rules of a tribunal.”
Clever use of word processing features can help squeeze extra space for counsel’s
argument. But again, there is a line between using writing and formatting techniques to
maximize argument length and using those techniques to violate the rules of the court.
For example, in the North Carolina Court of Appeals, briefs are limited to 30
pages in 12-point monospaced font (like this, Courier New) or 8,750 words in 14point proportional font (like this, Century). Briefs must be double-spaced, but
footnotes can be single-spaced. If your brief is running over 30 pages and you are using
the page limit formatting, can you “rewrite” some of your argument by moving it to
single-spaced footnotes which saves page space?
Likewise, if your brief is running over 8,750 words in a word limit brief, can you
modify your citations to reduce the word count (for example, by eliminating the spaces in
legal citations such as N.C.App.)?
Counsel should carefully consider whether the decision to use a particular
formatting technique is made for strategic or stylistic reasons, which is permissible, or is
a deliberate effort to disobey the page or word limit restrictions established by the court,
which is prohibited by Rule 3.4.
GROUP DISCUSSION OF HYPOTHETICAL FACT SCENARIO IN HANDOUT