What does the “Robe” mean to a Judge? #Texas #TexasLaw #FederalJudge #AppellateJudge #CA5 #txlege #lawtwitter #appellatetwitter #ethics #Constitution #WeThePeople @SupremeCourt_TX @GovAbbott @tedcruz @statebaroftexas @KenPaxtonTX pic.twitter.com/YdYt9wAlSl

— LawsInTexas (@lawsintexasusa) October 31, 2019

ARTICLE CONTENTS

1. Introduction. 225
2. Preamble. 227
3. Lawyers’ Duties to Clients. 228
4. Lawyers’ Duties to the Court. 234
5. Lawyers’ Duties to Lawyers.242
6. The Court’s Relationship with Counsel. 247
7. Conclusion. 251

Heads up Citizens:

Watch out for all that Unpublished Glossin’ over there at the 11th Cir.

It’s time y’all start Flossin’ for some change as 2021 is the year of eviction, guaranteed. And this shows you there ain’t no justice in the courtroom today.https://t.co/UYPF2FNzCE https://t.co/iz2Wbs8EQJ pic.twitter.com/z6XtDJHbS5

— LawsInTexas (@lawsintexasusa) December 2, 2020

it could be in this department.”³ In response, the Appellate Section of the State Bar of Texas appointed a committee made up of a current appellate justice, a former appellate justice, a current court staff attorney, a former appellate court staff attorney, full-time appellate lawyers, and lawyers who do both trial and appellate work.⁴

After a year of studying creeds and standards of conduct for trial lawyers from nearly forty jurisdictions, the committee drafted the Standards.⁵ The draft was circulated to the Appellate Section and the State Bar Board of Directors.⁶ The Board of Directors then appointed an ad hoc committee that studied the Standards and sought feedback by forwarding a copy of the proposed Standards to every state and federal trial and appellate judge in Texas, every former chief justice of the Texas Courts of Appeals, the chair of every state bar section, and other key stakeholders.⁷ The revised Standards were eventually approved by the State Bar Board of Directors in 1997 and forwarded to the Supreme Court of Texas and the Texas Court of Criminal Appeals for review and approval.⁸ Once adopted, the Standards were printed in the April 1999 Texas Bar Journal.⁹ Some appellate courts, such as the First and Fifth Courts of Appeals, have specifically adopted the Standards into each Court’s practitioners’ guide to their respective courts.¹⁰ All the other courts provide links to the Standards on their website for counsel’s reference.¹¹

New post: Former Texas Lawyer Gary Inmon, Who Stole $119k Can’t Stay Out of the News, But Can Stay Out of Jail https://t.co/T8iwOgcDXu

— LawsInTexas (@lawsintexasusa) December 6, 2020

The   Standards   are   divided   into   five   sections:

(1) the  Preamble;

(2) Lawyers’   Duties   to   Clients;

(3) Lawyers’   Duties   to   the   Court;

(4) Lawyers’ Duties to Lawyers; and

(5) the Court’s Relationship with Counsel.¹²

This Article will analyze and annotate each section.

Oh look, a review of a dismissed Judicial complaint has made it onto the 5th Circuit website by https://t.co/tgOgch6hNI on Wed. Dec., 2. But alas, that’s it. Not even the Burkes Nov. 10 dismissed complaint has been posted yet. https://t.co/55svhEvMYR

— LawsInTexas (@lawsintexasusa) December 6, 2020

Commentary: The second paragraph of the Preamble recognizes that the legal profession has a set of duties that are already understood and followed by the appellate bar.¹⁶ In this Article, certain standards are cross-referenced along with pre-existing duties that apply to all lawyers under the Texas Disciplinary Rules of Professional Conduct, as well as professional obligations spelled out in the Texas Lawyer’s Creed.

Use of these standards for appellate conduct as a basis for motions for sanctions, civil liability or litigation would be contrary to their intended purpose and shall not be permitted. Nothing in these standards alters existing standards of conduct under the Texas Disciplinary Rules of Professional Conduct, the Texas Rules of Disciplinary Procedure or the Code of Judicial Conduct.¹⁷

Commentary: The third paragraph of the Preamble appears to neutralize the Standards by emphasizing that the Standards shall not be used as the basis for any liability against a practitioner who fails to follow them. Nevertheless, in a profession in which credibility, candor, and honesty are valued attributes, lawyers should be mindful of the reputational and professional damage that can occur from disregarding rules prescribing ethical conduct.

Can-t[u] help notice Justice Longoria on the panel for this opinion… #txlege https://t.co/AGf4lu7YX6@CallerCrow @gsmtweet @SABJArnold @PolitiFactTexas @CallerKat @ByDavidSilvaR @abelherrero @zahiratorres @BrettBlackledge @Caller_Len @Caller_Courtney @HaysSheriff @tmz @abc https://t.co/w2HEmif57Q pic.twitter.com/dFshaI4zMT

— LawsInTexas (@lawsintexasusa) December 5, 2020

LAWYERS’ DUTIES TO CLIENTS

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by a real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

The lawyer’s duty to a client does not militate against the concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of harm on the appellate process, the courts, and the law itself.

Standard 1: Counsel will advise their clients of the contents of these Standards of Conduct when undertaking representation.¹⁸

Commentary: This standard sets forth a good rule of thumb for appellate practitioners: provide full disclosure to your client regarding all boundaries of a lawyer’s representation, even on appeal. This standard coincides with Texas Disciplinary Rule 1.02(f), which mandates that a lawyer consult with his or her client regarding the ethical and legal bounds of a lawyer’s particular representation.¹⁹

Standard 2: Counsel will explain the fee agreement and cost expectation to their clients. Counsel will then endeavor to achieve the client’s lawful appellate objectives as quickly, efficiently, and economically as possible.²⁰

Commentary: This standard coincides with existing duties owed by lawyers to clients under Texas Disciplinary Rule 1.04 with regard to fees.²¹

Standard 3: Counsel will maintain sympathetic detachment, recognizing that lawyers should not become so closely associated with clients that the lawyer’s objective judgment is impaired.²²

Commentary: Generally, appellate lawyers should not allow emotions regarding a client’s case cloud his or her judgment and advocacy on appeal.²³ 

However, effective lawyering sometimes requires empathy to enable a lawyer to fully understand and appreciate the extent of the client’s situation and determine the best solution.

WARNING: DISTURBING NEWS

The Lawyers:

“We run the Country – and still do”

The Lawyers:

“We Make the Laws advantageous to Lawyers”.

The Lawyers:

“We don’t go to jail”.https://t.co/iM4s37AmU5

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— LawsInTexas (@lawsintexasusa) December 1, 2020

Standard 4: Counsel will be faithful to their clients’ lawful objectives, while mindful of their concurrent duties to the legal system and the public good.²⁴

Commentary: As with all lawyers, appellate counsel should diligently fulfill his or her client’s objectives on appeal, but should not forget his or her other duties to the profession and the public at large.²⁵

Standard 5: Counsel will explain the appellate process to their clients. Counsel will advise clients of the range of potential outcomes, likely costs, timetables, effect of the judgment pending appeal, and the availability of alternative dispute resolution.²⁶

Standard 5: Counsel will explain the appellate process to their clients. Counsel will advise clients of the range of potential outcomes, likely costs, timetables, effect of the judgment pending appeal, and the availability of alternative dispute resolution.²⁶

Commentary: Because appellate courts, and the appellate system at large, oftentimes do not receive the type of public attention that trial courts receive, it is imperative that appellate counsel explains the appellate process to his or her client, including the contemplative nature of an appellate decision, how such decisions are rendered and the anticipated timetable of the process.²⁷

Standard 6: Counsel will not foster clients’ unrealistic expectations.²⁸

Commentary: This standard can be quite difficult to follow in practice, but appellate counsel should temper rather than encourage a client’s unrealistic expectations in order to avoid further confusion, anger, or malice once an appeal has been decided.²⁹

Standard 7: Negative opinions of the court or opposing counsel shall not be expressed unless relevant to a client’s decision process.³⁰

Commentary: Appellate counsel should refrain from expressing any negative opinions or ad hominem criticism about a court or his or her opposing counsel, unless such opinions will aid a client’s decisions in an appeal.³¹

Standard 8: Counsel will keep clients informed and involved in decisions and will promptly respond to inquiries.³²

Commentary: Communication with a client is a key factor to competent, diligent, and ethical representation.³³ This standard coincides with Texas Disciplinary Rule 1.03(a), which requires a lawyer to keep his or her client reasonably informed about a client’s case, as well as respond to reasonable requests by the client for information.³⁴

Standard 9: Counsel will advise their clients of proper behavior, including that civility and courtesy are expected.³⁵

Commentary: The standard places an obligation upon the appellate practitioner to ensure that his or her client understands appropriate behavior on appeal, as well as the value of civility and courtesy to other parties, the court, and its personnel.³⁶

The Eleventh Circuit’s “White Out” Opinions

Rubbin’ Out Kaplan lawyers criminal fraudulent transfers via fake billing; https://t.co/gSlENYszUE

Expunging Lyin’ Judge Marra’s perjurious words from their Opinion; https://t.co/jP5XvenMmb #WeThePeopleHaveSpoken @senfeinstein pic.twitter.com/OjMhaHa9qH

— LawsInTexas (@lawsintexasusa) November 7, 2020

Standard 10: Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client’s lawful objectives. A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel.³⁷

Commentary: This standard is a near verbatim recitation of Part II, Section 10 of the Texas Lawyer’s Creed, which places the right to grant accommodations and requests by opposing counsel which do not adversely affect a client’s objectives solely in hands of the lawyer and not the client.³⁸

Standard 11: A client has no right to demand that counsel abuse anyone or engage in any offensive conduct.³⁹

Commentary: This standard coincides with Part II, Section 6 of the Texas Lawyer’s Creed.⁴⁰ This standard clearly establishes that a client has no right to instruct an appellate practitioner to engage in abusive or offensive conduct toward anyone or any entity.

Standard 12: Counsel will advise clients that an appeal should only be pursued in a good faith belief that the trial court has committed error or that there is a reasonable basis for the extension, modification, or reversal of existing law, or that an appeal is otherwise warranted.⁴¹

Commentary: This standard corresponds to Standard 1 of a Lawyer’s Duty to the Courts.⁴² The standard is of importance to appellate practitioners because it states that a lawyer shall advise his or her client that a sufficient basis should exist prior to pursuing an appeal.

However, the standard is another that can be difficult to follow in practice, when a client’s true interest in pursuing an appeal is solely to delay proceedings and the client is willing to pay for the use of the appellate process to accomplish this goal.

Standard 13: Counsel will advise clients that they will not take frivolous positions in an appellate court, explaining the penalties associated therewith. Appointed appellate counsel in criminal cases shall be deemed to have complied with this standard of conduct if they comply with the requirements imposed on appointed counsel by courts and statutes.⁴³

Commentary: This standard overlaps with Texas Disciplinary Rule 3.01, which states that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.”⁴⁴ Appellate counsel plays a vital role in ensuring that clients understand the viability of an appeal and whether such an appeal should be pursued.⁴⁵ Furthermore, by following this standard, courts will operate more efficiently without having to address frivolous positions on appeal.⁴⁶

The Florida Supreme Court Appear to Be Applying the Law at Oral Argument on Oct. 12, 2020.

NOT SO the Turncoats at https://t.co/3AEdYLyLuY

What does the Court of Appeals for the Fifth Circuit, Louisiana and the American Civil War Have in Common? https://t.co/UQkGAzoCaF pic.twitter.com/xcZJ1vTFVa

— LawsInTexas (@lawsintexasusa) October 13, 2020

IV. LAWYERS’ DUTIES TO THE COURT

As professionals and advocates, counsel assist the Court in the administration of justice at the appellate level. Through briefs and oral submissions, counsel provide a fair and accurate understanding of the facts and law applicable to their case. Counsel also serve the Court by respecting and maintaining the dignity and integrity of the appellate process.

Standard 1: An appellate remedy should not be pursued unless counsel believes in good faith that error has been committed, that there is a reasonable basis for the extension, modification, or reversal of existing law, or that an appeal is otherwise warranted.⁴⁷

Commentary: Like its counterpart standard mentioned above (Standard 12), this standard specifically deals with a lawyer’s duty to the courts rather than the previous standard, which places a lawyer’s duty to his or her client to advise against pursuing a bad-faith appeal.

Furthermore, while the Standards do not allow for sanctions, Texas Rule of Appellate Procedure 45 (“TRAP”) authorizes a court—upon a party’s motion or sua sponte—to assess appellate sanctions if the court determines that an appeal is frivolous.⁴⁸ In several appellate cases where sanctions were imposed under this rule, parties attempted to re-litigate and appeal issues that were already decided.⁴⁹ In the context of appointed counsel for criminals (as well as termination of parental rights cases), appellate counsel has the ability to file Anders briefs with the court, in which counsel concludes that based on his/her “good-faith review of the law and record [there is] no plausible grounds for appeal.”⁵⁰

Standard 2: An appellate remedy should not be pursued primarily for purposes of delay or harassment.⁵¹

Commentary: In Archer v. Wood,⁵² the Dallas Court of Appeals found that counsel who had requested oral argument, then failed to appear, and also provided the court with inadequate briefing, brought the appeal for purposes of delay and assessed sanctions under the TRAP.⁵³ In contrast, a Fort Worth Court of Appeals denied a motion to sanction an appellant who brought an ERISA claim to recover benefits from a previous suit, despite res judicata, which the court found prevented the appellant from recovering such benefits.⁵⁴

The court observed that “while the litigation in this suit was very contentious, we do not find that this appeal was brought solely to harass the companies, or that it was completely groundless and filed for purposes of delay.”⁵⁵

Standard 3: Counsel should not misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities.⁵⁶

Commentary: The Fourteenth Court of Appeals sanctioned an attorney in a divorce case after the appellate lawyer cited to evidence outside the appellate record and failed to “recognize or even mention the debts assessed against each party’s share of the community estate in arguing that the trial court made a disproportionate division of community property in favor of [his ex-wife].”⁵⁷

The Thirteenth Court of Appeals imposed sanctions on an attorney who “mischaracterized the nature of the appeal as an interlocutory appeal,” which required the court to unnecessarily accelerate the appeal.⁵⁸ The court found that the mischaracterization imposed a hardship on the court and its staff, as well as on other appeals pending before the court.⁵⁹

Standard 4: Counsel will advise the Court of controlling legal authorities, including those adverse to their position, and should not cite authority that has been reversed, overruled, or restricted without informing the court of those limitations.⁶⁰

Commentary: This standard relates to TRAP 38.1 (appellant’s brief)⁶¹ and 38.2 (appellee’s brief),⁶² as well as the Texas Disciplinary Rule of Professional Conduct 3.03(a)(4).⁶³

WHAT’s HOT ON LIT ON FRIDAY?

The Law of Restitution and Unjust Enrichment Explained – https://t.co/pBBp7dyi8B pic.twitter.com/zPsw18qhiO

— LawsInTexas (@lawsintexasusa) October 9, 2020

In a 1997 case from the Thirteenth Court of Appeals, the court ordered the relators of a mandamus proceeding to respond in writing to the court and show cause why the court should not impose sanctions for the relators’ failure to disclose a case directly adverse to their position as controlling authority, despite their filing of a thirty-seven page brief and three pages of authorities.⁶⁴

In contrast, another attorney fulfilled this standard by writing a letter brief to the court following oral argument, clarifying a case that she cited at argument.⁶⁵ The attorney apologized to the court for misstating the law at argument and voluntarily corrected the error with a more thorough response.⁶⁶

Standard 5: Counsel will present the Court with a thoughtful, organized, and clearly written brief.⁶⁷

Commentary: Like Standard 4, this standard relates to the briefing rules of the TRAP. Failure to comply with this standard, may result in a waiver of the issue on appeal.⁶⁸ In practice, courts will typically provide parties with an opportunity to correct defective briefs before the briefs are considered “filed” by the court.⁶⁹ Any failure to correct these errors may result in a dismissal in civil cases.⁷⁰ Criminal appeals that fail to comply with these rules and standards follow separate procedures under the TRAP.⁷¹

Standard 6: Counsel will not submit reply briefs on issues previously briefed in order to obtain the last word.⁷²

Commentary: One common example in reply briefs before the court, which could be construed to violate this standard, is the raising of new issues or arguments.⁷³ Like the other efforts to circumvent the briefing rules, raising new issues, arguments, or claims on appeal may result in a waiver of the argument.⁷⁴

Standard 7: Counsel will conduct themselves before the Court in a professional manner, respecting the decorum and integrity of the judicial process.⁷⁵

Commentary: Simply stated, do not be disrespectful to a court or its personnel.

In 1996, the El Paso Court of Appeals referred an attorney to the State Bar of Texas for possible violations of the Texas Disciplinary Rules of Professional Conduct.⁷⁶ After the lawyer’s case had been submitted to the court by oral argument, counsel called a court staff member by telephone “for the purpose of inquiring, among other things, as to what his ‘chances’ were in the then pending case and whether he should ‘settle’ his case prior to the issuance of the opinion.”⁷⁷

The court found, as a matter of law, that “any attempt to solicit or receive information on the merits of a pending case from a staff member of an appellate court constitutes an impermissible ex parte communication with chambers” because it undermines the integrity of the courts, breeds skepticism and distrust, and thwarts principles upon which the justice system is based.⁷⁸

The El Paso Court did not make any findings of fact as to the alleged improprieties, but felt the mandatory need to refer the matter to the State Bar.⁷⁹

The Facts. The Truth. The Conspiracy. The Corruption.
The judiciary. The Government. The Banks / Non-Banks. The Lawyers against the People of America. Watch. Share. Subscribe to our Free Newsletter. Be a Voice. People are writing to LIT and they are ANGRY. https://t.co/GxZKmIgNIU pic.twitter.com/NgKbYzxQ9c

— LawsInTexas (@lawsintexasusa) September 11, 2020

In 1997, the San Antonio Court of Appeals sanctioned an attorney who made “disparaging remarks” in his reply brief by questioning the fitness of the trial judge.⁸⁰ The Fourth Court of Appeals also noted that counsel made similar comments about the trial court during oral arguments.⁸¹ The court forwarded its opinion to the State Bar and asserted that the attorney’s actions put into questions his honesty, trustworthiness, and fitness to practice law.⁸²

In 1997, the Corpus Christi Court of Appeals⁸³ found an attorney in contempt of court for twice violating an injunction issued by the court.⁸⁴ As a sanction, a split court, sitting en banc, fined the lawyer $500 for each of the two convictions and ordered him confined to jail for thirty days.⁸⁵ Subsequently, the court set aside its order of confinement and ordered the lawyer to attend a one-day long ethics course sponsored by the Texas Center for Legal Ethics and Professionalism, and insisted that the lawyer pay a fine of $1,000.⁸⁶

Standard 8: Counsel will be civil and respectful in all communications with the judges and staff.⁸⁷

Commentary: In In re Wightman,⁸⁸ the Dallas Court of Appeals denied habeas relief to a lawyer who was held in contempt for sending a letter to a trial court judge expressing his opinion that the judge was incompetent and corrupt.⁸⁹ The letter also threatened to file disciplinary charges and sue the judge if the judge failed to rule in the lawyer’s favor.⁹⁰

The lawyer was sentenced to ninety days in jail; by denying habeas relief, the appellate court affirmed the decision.⁹¹

Anecdotally, the Thirteenth Court of Appeals received a letter from an attorney challenging the clerk’s “analysis of the law” which resulted in the attorney being charged a $145 filing fee for a habeas petition filed on behalf of his client. The letter included the following threat: “I shall shortly file a suit against you” for recovery of the fee. The lawyer added, however, that he harbored “no ill will” against the clerk.

One of the best explanations and commentaries on civility and respect in the courts and judicial system is found in Gleason v. Isbell.⁹² In that case, a pro se appellant filed a motion for rehearing which lodged several accusations against the panel’s original opinion, including calling it “disingenuous,” “dishonest,” “retaliatory,” “false,” “corrupt,” and “fraudulent.”⁹³ Writing separately from the majority on the issue of whether to grant appellant’s motion to withdraw his motion for rehearing and grant a motion for extension of time to file a new motion for rehearing, then-Justice, now Chief Justice Kem Thompson Frost noted that:

Judges are the guardians of the court as an institution and so they must insist that all who come before the court act with dignity, decorum, and respect. Even though judges, on a personal level, might be willing to suffer insults and personal attacks like those contained in appellant’s filings, they must, by virtue of their office, protect the dignity of the court from such offensive and unacceptable conduct. As individuals, the justices of this court may not have garnered appellant’s respect or esteem, but, we must, as judges, demand respect for this court as an institution.

[ . . . . ]

As guardians of the public’s confidence in our legal system, judges must maintain a strong commitment to both inspire and demand the highest standards of civility and personal behavior from litigants and lawyers appearing in the courts of this state.⁹⁴

The Frazzled Sequel: Cato File another Amicus Brief into the Fifth Circuit’s All American Case And It’s Hard-Hitting https://t.co/YI3tQxWxiV @CatoInstitute @reason @VolokhC @JoshMBlackman @AnnCoulter @Public_Justice @ClassActionLaw @ishapiro @BLaw @JDSupra @dcexaminer #Texas pic.twitter.com/dxZmGdzwN6

— LawsInTexas (@lawsintexasusa) September 21, 2020

Standard 9: Counsel will be prepared and punctual for all Court appearances, and will be prepared to assist the Court in understanding the record, controlling authority, and the effect of the court’s decision.⁹⁵

Commentary: In the spirit of this standard, TRAP 45 permits an appellate court to award the prevailing party just damages upon a determination that a civil appeal is frivolous.⁹⁶

The [C]ourts of [A]ppeals have recited four factors which tend to indicate that an appeal is frivolous: (1) the unexplained absence of a statement of facts;

(2) the unexplained failure to file a motion for new trial when it is required to successfully assert factual sufficiency on appeal; (3) a poorly written brief raising no arguable points of error; and (4) the appellant’s unexplained failure to appear at oral argument.⁹⁷

In Stafford v. Stafford,⁹⁸ the Amarillo Court of Appeals sanctioned an appellant’s counsel under TRAP 45  where  the  court  found  that  counsel: (1) failed to mention that an earlier opinion of the court resolved the issue he raised; (2) filed an incomplete record; (3) filed an inadequate brief; and (4) failed to respond to the appellee’s motion for sanctions.⁹⁹

As a practical tip, if appellate counsel is asked a question during oral argument about the trial record that they are unable to answer, he or she should offer to file a post-argument “letter brief” providing the requested information.

Standard 10: Counsel will not permit a client’s or their own ill feelings toward the opposing party, opposing counsel, trial judges or members of the appellate court to influence their conduct or demeanor in dealings with the judges, staff, other counsel, and parties.¹⁰⁰

Commentary: Counsel should exercise good judgment in his or her behavior with other parties or court staff. In In Re Terminix International, Co.,¹⁰¹ the Thirteenth Court of Appeals ordered sanctions be paid by a lawyer to his opposing counsel for refusing to fax a copy of the relator’s mandamus petition.¹⁰²

Terminix, the relator, filed a mandamus petition delivered to the court by Federal Express on February 6, 2004, and sent the real parties a copy of the petition by certified mail.¹⁰³ The court requested an expedited response from real parties by February 11, 2004.¹⁰⁴

When counsel for real parties received the request for a response—but still had not received a copy of the petition—counsel for real parties asked relator’s counsel to fax a copy of the petition.¹⁰⁵

Relator’s counsel refused, explaining that “it was almost 5:00 p.m. on Friday, and no one was available in [his] office to send the fax at that time.”¹⁰⁶ By refusing to provide a faxed copy, relator’s counsel reduced the real parties’ “response time from five days to two.”¹⁰⁷

In imposing sanctions, the court found that relator’s counsel’s refusal “was unreasonable and designed to thwart opposing counsel’s ability to timely and effectively respond to the petition.”¹⁰⁸

V. LAWYERS’ DUTIES TO LAWYERS

Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve. The duty that lawyers owe their clients and the system can be most effectively carried out when lawyers treat each other honorably.

The Deutsche Bank Court just got more powerful;

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— LawsInTexas (@lawsintexasusa) September 21, 2020

Standard 1: Counsel will treat each other and all parties with respect.¹⁰⁹

Commentary: When it comes to lawyer-to-lawyer relationships, this is the Golden Rule.¹¹⁰ Counsel should always treat all opposing counsel and parties the way that they would expect to be treated.

Standard 2: Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel.¹¹¹

Commentary: This standard relates closely to Standard 10 of the Lawyer’s Duties to their Clients.¹¹² Appellate counsel should not withhold consent to reasonable requests for filings or scheduling accommodations made by opposing counsel.¹¹³

Standard 3: Counsel will not request an extension of time solely for the purpose of unjustified delay.¹¹⁴

Commentary: Sometimes appellate counsel must seek reasonable requests for extension of time to file briefs or other matters before an appellate court. Those requests, however, should be reasonable and not brought solely for purposes of delaying justice for any party.¹¹⁵

Standard 4: Counsel will be punctual in communications with opposing counsel.¹¹⁶

“Make the lie big. Make it simple. Keep saying it, and eventually people will believe it.”
​-Adolf Hitler https://t.co/l5cYcZaiQ5 https://t.co/Zsg2T085Qs pic.twitter.com/A2oX9vH2WK

— LawsInTexas (@lawsintexasusa) December 9, 2020

Commentary: Just like Standard 9’s Duties to the Courts, counsel should be punctual with his or her communications to opposing counsel.¹¹⁷ In many circumstances, opposing counsel acts on a tight deadline in which a response from opposing counsel is necessary and required by the court. Appellate counsel should be mindful of these time constraints and respond promptly to an opposing counsel’s communication.

Standard 5: Counsel will not make personal attacks on opposing counsel or parties.¹¹⁸

Commentary: No matter how contentious or bitter a particular case may be, counsel should refrain from personally attacking any lawyer or party in order to foster continued dignity and civility in the practice of law.¹¹⁹

Standard 6: Counsel will not attribute bad motives or improper conduct to other counsel without good cause, or make unfounded accusations of impropriety.¹²⁰

Who is Laura Stock Craven, a Liar Lawyer at Goodwin Procter LLP? – https://t.co/wXIKBCcyzq #barexam pic.twitter.com/J5d1nIujwC

— LawsInTexas (@lawsintexasusa) August 14, 2020

Commentary: Unfortunately, opposing counsel may act or behave in an inappropriate manner, or in violation of the Texas Disciplinary Rules of Professional Conduct. Counsel should be cautious, however, in making such accusations unless they are supported by good cause.¹²¹

Standard 7: Counsel will not lightly seek court sanctions.¹²²

Commentary: Counsel should act with caution before seeking appellate sanctions against a party or an attorney. TRAP 45 governs sanctions in civil appeals,¹²³ and TRAP 52.11 governs sanctions that may be imposed in original proceedings.¹²⁴

Standard 8: Counsel will adhere to oral or written promises and agreements with other counsel.¹²⁵

Commentary: In order to facilitate the administration of justice and the appellate process, counsel who promise or reach agreements must adhere to such agreements to avoid further litigation, cost, and expenses of an appeal.¹²⁶ It is as simple––and important––as keeping one’s word.

Standard 9: Counsel will neither ascribe to another counsel or party a position that counsel or the party has not taken, nor seek to create an unjustified inference based on counsel’s statements or conduct.¹²⁷

Commentary: The best appellate advocates rely on their own arguments and distinguish opposing counsel’s arguments.¹²⁸

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— LawsInTexas (@lawsintexasusa) December 9, 2020

While it is acceptable to draw reasonable inferences from a position taken by opposing counsel, such inferences should not be unjustified or unreasonable.¹²⁹

Standard 10: Counsel will not attempt to obtain an improper advantage by manipulation of margins and type size in a manner to avoid court rules regarding page limits.¹³⁰

Commentary: TRAP 9.4 sets forth various guidelines regarding briefs, including: paper type and size, margins, spacing, typeface, and length of briefs.¹³¹ Typically, briefs that are non-compliant are rejected by a court’s clerk.¹³² However, counsel should never attempt to manipulate the briefing rules to gain a strategic advantage, whatever it may be.¹³³

Standard 11: Counsel will not serve briefs or other communications in a manner or at a time that unfairly limits another party’s opportunity to respond.¹³⁴

Commentary: Parties should not attempt to “one up” the opposing side by serving briefs or other filings in an unfair manner. The best cases are those that have given both sides the ability to fully brief their positions and opposing counsel an opportunity to reasonably respond.¹³⁵

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— LawsInTexas (@lawsintexasusa) December 9, 2020

VI. THE COURT’S RELATIONSHIP WITH COUNSEL

Unprofessionalism can exist only to the extent it is tolerated by the court. Because courts grant the right to practice law, they control the manner in which the practice is conducted.

The right to practice requires counsel to conduct themselves in a manner compatible with the role of the appellate courts in administering justice.

Likewise, no one more surely sets the tone and the pattern for the conduct of appellate lawyers than appellate judges. Judges must practice civility in order to foster professionalism in those appearing before them.

Standard 1: Inappropriate conduct will not be rewarded, while exemplary conduct will be appreciated.¹³⁶

Commentary: It is rare to find written expressions of appreciation from appellate courts. Still, there are a few. In Stovall v. State,¹³⁷ the Texas Court of Criminal Appeals wrote:

The Court appreciates this well[-]prepared record from the office of the District Clerk of Tarrant County, and especially the deputy clerk who typed and included docket sheet entries instead of using a photographic copy of the handwriting of the trial judge, which is usually sent up in most records. Some copies of handwritten docket entries are almost impossible to read and some are illegible.¹³⁸

Furthermore, under this standard, appellate courts might recognize an attorney’s departure from the Standards as a means to discourage such behavior.

For instance, in the case of In re Goldblatt,¹³⁹ the Fort Worth Court of Appeals admonished counsel for making misrepresentations to the court:

[T]his court will not tolerate any further misrepresentations by counsel for Goldblatt. At oral argument, counsel for Goldblatt informed this court that he had advised his client not to seek eviction until after the enforceability of the permanent injunction had been determined, but he also indicated in the petition for writ of mandamus and prohibition that “[e]ach of [Goldblatt’s] listed actions have been taken on the advice of counsel.”

We remind counsel of his ethical obligations under the Texas Disciplinary Rules of Professional Conduct and his obligations as an appellate practitioner under the Standards for Appellate Conduct adopted by this court.¹⁴⁰

The Goldblatt case illustrates a clear instance of a court referencing the Standards and “not rewarding” such inappropriate conduct.

Standard 2: The court will take special care not to reward departures from the record.¹⁴¹

Commentary: This standard has been adopted into the rules of appellate procedure and the common law applying them.¹⁴² TRAP 34.1 provides that the “appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”¹⁴³ Appellate courts cannot consider documents that are not included in the appellate record.¹⁴⁴

This scenario is seen most often when items are included in the appendix to a brief that were not otherwise included in the appellate record.¹⁴⁵ Such items are not considered by the appellate court.¹⁴⁶

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— LawsInTexas (@lawsintexasusa) August 15, 2020

And oftentimes the court will say explicitly in its opinion that it is not considering those documents due to counsel’s failure to follow the appropriate rules.¹⁴⁷ Therefore, as a practical tip: if a practitioner discovers that something was omitted from the appellate record when writing his or her brief, it would be wise to ensure that either a supplemental clerk’s record or supplemental reporter’s record is filed with the court.

Standard 3: The court will be courteous, respectful, and civil to counsel.¹⁴⁸

Commentary: Many appellate judges throughout the State of Texas enjoy cordial relationships with attorneys throughout the state, and, in particular, with members of the Appellate Section of the State Bar of Texas.¹⁴⁹ Nevertheless, judges should be mindful of this standard when dealing with counsel. Judges are likewise reminded that Canon 1 of the Texas Code of Judicial Conduct encourages judges to establish, maintain, and enforce high standards of conduct.¹⁵⁰

Standard 4: The court will not disparage the professionalism or integrity of counsel based upon the conduct or reputation of counsel’s client or co- counsel.¹⁵¹

Commentary: Under this standard, judges should not call into question an appellate counsel’s professionalism or integrity based upon who that lawyer represents or who that lawyer associates with on a case.¹⁵²

Standard 5: The court will endeavor to avoid the injustice that can result from delay after submission of a case.¹⁵³

Commentary: All appellate courts provide reports to the Office of Court Administration regarding the number of cases disposed of and the average length of time to disposition.¹⁵⁴ Generally, intermediate appellate courts strive to dispose of cases within a year of submission.¹⁵⁵ In certain cases, the legislature obligates appellate courts to dispose of cases at a faster pace.¹⁵⁶

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— LawsInTexas (@lawsintexasusa) August 18, 2020

Appeals from an order terminating parental rights should as far as reasonably possible be disposed of “[w]ithin 180 days of the date the notice of appeal is filed.”¹⁵⁷

Standard 6: The court will abide by the same standards of professionalism that it expects of counsel in its treatment of the facts, the law, and the arguments.¹⁵⁸

Commentary: Judges are not excused from following the Standards. Further, not only should judges ensure that the Standards are followed, but judges should likewise lead by example.

Standard 7: Members of the court will demonstrate respect for other judges and courts.¹⁵⁹

Commentary: Oftentimes judges will disagree with fellow judges or sister courts in a decision or opinion.¹⁶⁰ Judges must always maintain professionalism, respect, and civility for one another, even if disagreement arises, regardless of the magnitude of the decision being rendered. The Bar (and public) are always watching, and the Bench should always strive to serve as the leading example of high ethical standards.

VII. CONCLUSION

This Article has hopefully provided the reader with a deeper insight into each standard. The Standards serve as a guiding light not only for practitioners, but also for the courts and their personnel. The Authors believe that when we all strive toward the Standards, the practice of law, our profession, and the administration of justice all benefit.

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— LawsInTexas (@lawsintexasusa) August 26, 2020

Standards for Appellate Conduct

The Supreme Court of Texas

Lawyers are an indispensable part of the pursuit of justice. They are officers of courts charged with safeguarding, interpreting, and applying the law through which justice is achieved. Appellate courts rely on counsel to present opposing views of how the law should be applied to facts established in other proceedings. The appellate lawyer’s role is to present the law controlling the disposition of a case in a manner that clearly reveals the legal issues raised by the record while persuading the court that an interpretation or application favored by the lawyer’s clients is in the best interest of the administration of equal justice under law.

The duties lawyers owe to the justice system, other officers of the court, and lawyers’ clients are generally well-defined and understood by the appellate bar. Problems that arise when duties conflict can be resolved through understanding the nature and extent of a lawyer’s respective duties, avoiding the tendency to emphasize a particular duty at the expense of others, and detached common sense. To that end, the following standards of conduct for appellate lawyers are set forth by reference to the duties owed by every appellate practitioner.

Use of these standards for appellate conduct as a basis for motions for sanctions, civil liability or litigation would be contrary to their intended purpose and shall not be permitted. Nothing in these standards alters existing standards of conduct under the Texas Disciplinary Rules of Professional Conduct, the Texas Rules of Disciplinary Procedure or the Code of Judicial Conduct.

Lawyers’ Duties to Clients

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by a real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest. The lawyer’s duty to a client does not militate against the concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of harm on the appellate process, the courts, and the law itself.

1. Counsel will advise their clients of the contents of these Standards of Conduct when undertaking representation.

2. Counsel will explain the fee agreement and cost expectation to their Counsel will then endeavor to achieve the client’s lawful appellate objectives as quickly, efficiently, and economically as possible.

3. Counsel will maintain sympathetic detachment, recognizing that lawyers should not become so closely associated with clients that the lawyer’s objective judgment is impaired.

4. Counsel will be faithful to their clients’ lawful objectives, while mindful of their concurrent duties to the legal system and the public good.

5. Counsel will explain the appellate process to their Counsel will advise clients of the range of potential outcomes, likely costs, timetables, effect of the judgment pending appeal, and the availability of alternative dispute resolution.

6. Counsel will not foster clients’ unrealistic expectations.

7. Negative opinions of the court or opposing counsel shall not be expressed unless relevant to a client’s decision process.

8. Counsel will keep clients informed and involved in decisions and will promptly respond to inquiries.

9. Counsel will advise their clients of proper behavior, including that civility and courtesy are expected.

10. Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client’s lawful A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel.

11. A client has no right to demand that counsel abuse anyone or engage in any offensive conduct.

12. Counsel will advise clients that an appeal should only be pursued in a good faith belief that the trial court has committed error or that there is a reasonable basis for the extension, modification, or reversal of existing law, or that an appeal is otherwise warranted.

13. Counsel will advise clients that they will not take frivolous positions in an appellate court, explaining the penalties associated therewith. Appointed appellate counsel in criminal cases shall be deemed to have complied with this standard of conduct if they comply with the requirements imposed on appointed counsel by courts and statutes.

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Lawyers’ Duties to the Court

As professionals and advocates, counsel assist the Court in the administration of justice at the appellate level. Through briefs and oral submissions, counsel provide a fair and accurate understanding of the facts and law applicable to their case. Counsel also serve the Court by respecting and maintaining the dignity and integrity of the appellate process.

1. An appellate remedy should not be pursued unless counsel believes in good faith that error has been committed, that there is a reasonable basis for the extension, modification, or reversal of existing law, or that an appeal is otherwise warranted.

2. An appellate remedy should not be pursued primarily for purposes of delay or harassment.

3. Counsel should not misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities.

4. Counsel will advise the Court of controlling legal authorities, including those adverse to their position, and should not cite authority that has been reversed, overruled, or restricted without informing the court of those limitations.

5. Counsel will present the Court with a thoughtful, organized, and clearly written brief.

6. Counsel will not submit reply briefs on issues previously briefed in order to obtain the last word.

7. Counsel will conduct themselves before the Court in a professional manner, respecting the decorum and integrity of the judicial process.

8. Counsel will be civil and respectful in all communications with the judges and staff.

9. Counsel will be prepared and punctual for all Court appearances, and will be prepared to assist the Court in understanding the record, controlling authority, and the effect of the court’s decision.

10. Counsel will not permit a client’s or their own ill feelings toward the opposing party, opposing counsel, trial judges or members of the appellate court to influence their conduct or demeanor in dealings with the judges, staff, other counsel, and parties.

Lawyers’ Duties to Lawyers

Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve. The duty that lawyers owe their clients and the system can be most effectively carried out when lawyers treat each other honorably.

1. Counsel will treat each other and all parties with respect.

2. Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel.

3. Counsel will not request an extension of time solely for the purpose of unjustified delay.

4. Counsel will be punctual in communications with opposing counsel.

5. Counsel will not make personal attacks on opposing counsel or parties.

6. Counsel will not attribute bad motives or improper conduct to other counsel without good cause, or make unfounded accusations of impropriety.

7. Counsel will not lightly seek court sanctions.

8. Counsel will adhere to oral or written promises and agreements with other counsel.

9. Counsel will neither ascribe to another counsel or party a position that counsel or the party has not taken, nor seek to create an unjustified inference based on counsel’s statements or conduct.

10. Counsel will not attempt to obtain an improper advantage by manipulation of margins and type size in a manner to avoid court rules regarding page limits.

11. Counsel will not serve briefs or other communications in a manner or at a time that unfairly limits another party’s opportunity to respond.

The Court’s Relationship with Counsel

Unprofessionalism can exist only to the extent it is tolerated by the court. Because courts grant the right to practice law, they control the manner in which the practice is conducted. The right to practice requires counsel to conduct themselves in a manner compatible with the role of the appellate courts in administering justice.

Likewise, no one more surely sets the tone and the pattern for the conduct of appellate lawyers than appellate judges. Judges must practice civility in order to foster professionalism in those appearing before them.

1. Inappropriate conduct will not be rewarded, while exemplary conduct will be appreciated.

2. The court will take special care not to reward departures from the record.

3. The court will be courteous, respectful, and civil to counsel.

4. The court will not disparage the professionalism or integrity of counsel based upon the conduct or reputation of counsel’s client or co-counsel.

5. The court will endeavor to avoid the injustice that can result from delay after submission of a case.

6. The court will abide by the same standards of professionalism that it expects of counsel in its treatment of the facts, the law, and the arguments.

Members of the court will demonstrate respect for other judges and courts.