In addition to my active appellate practice, I have spent a substantial portion of my career focusing on the field of ethics and professionalism. Although these areas of law often intersect, I generally see little professional commentary on appellate ethics. Part of the reason, of course, is that appellate practice is very specialized, and there are only a handful of ethical rules specifically targeting appellate practitioners. But the applicable rules are critically important, and they need to be the focus of all appellate lawyers. Professionalism concerns are also important. While the rules of professional conduct set the floor that supports our status as lawyers in good standing, professionalism is the ceiling (the higher standard) to which all lawyers should aspire.
Highlighted below are some of the key ethical and professionalism concerns for lawyers practicing before the Sixth Circuit.
Duty to Avoid Frivolous and Unwarranted Appeals
Ethical considerations arise before a lawyer even decides to appeal a case to the Sixth Circuit. Rule 3.1 of the ABA Model Rules of Professional Conduct prohibits unwarranted appeals while Rule 38 of the Federal Rules of Appellate Procedure makes clear that frivolous appeals are sanctionable. These rules are generally straightforward, and yet we continue to see lawyers who pursue appeals that cannot possibly prevail. The classic example is where a party’s legal arguments are absolutely foreclosed by a prior panel decision. In the Sixth Circuit, a three-judge panel cannot overrule the decision of another panel. See Rule 206(c) of the Sixth Circuit Rules. Thus, there is no value in pursuing an appeal where the panel will be bound by a prior panel’s decision. The solution in such a situation is Rule 35 of the Federal Rules of Appellate Procedure. As Judge Merritt recently highlighted, there are times when an appeal should initially be heard en banc, rather than by a three-judge panel, so as to “avoid the inefficiency of appealing to the panel that could not grant [a party] the remedy that [it] seeks . . . .” See Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF). While en banc hearings are “not favored” (indeed, they remain rare), the Sixth Circuit has signaled that judicial inefficiency is more disfavored. The lesson from the Sixth Circuit is clear: Do not pursue an appeal when your legal arguments are absolutely foreclosed by a prior panel decision.
The irony in the Sixth Circuit’s lesson, of course, is that too many petitions for panel rehearing and rehearing en banc are being filed in the Sixth Circuit. Indeed, motions for rehearing are perhaps the most abused appellate procedure. Keep in mind the limited nature of a petition for panel rehearing and rehearing en banc. See 6 Cir. R. 35; 6 Cir. I.O.P. 40(a). As Sixth Circuit Judge Moore emphasized in her oft-cited dissent in Bell v. Bell, 512 F.3d 223, 250 (6th Cir. 2008), a panel “getting it wrong” does not qualify as a matter for rehearing, and lawyers need to keep this in mind.
The Duty of Candor
As officers of the court with an obligation to protect the integrity of the judicial process, lawyers owe a duty of candor to the Sixth Circuit. This explains why, for example, appellate practitioners are required to include jurisdictional statements in their briefs alerting the court to potential problems with subject matter and appellate jurisdiction. See Rule 28(a)(4) of the Federal Rules of Appellate Procedure. The duty of candor extends beyond simply the duty to avoid making false statements of fact or law to the court. It also includes portraying the factual record accurately and fairly. Sixth Circuit Rule 28, which addresses “references to the record,” provides that “[a] brief must direct the court to those parts of the record to which the brief refers.” Fair and accurate citations to the record matter just as much as avoiding making false statements to the court. Factual statements without record citations are an immediate red flag to the judges and their law clerks.
Duty to Disclose Adverse Authority.
Related to the duty of candor is the lawyer’s ethical duty to disclose adverse authorities to the court. ABA Model Rule 3.3(a)(2) provides 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.” This rule does not strip lawyers of their ability to be vigorous and partisan advocates on behalf of their clients. But it does mean that lawyers must refrain from affirmatively misleading the court as to the state of the law. Usually this requirement is straightforward, but consider the situation where certain language from an opinion that appears to render it directly adverse to the position of a lawyer’s client is viewed by that lawyer as dicta. Should the lawyer avoid citing the case? From a professionalism (if not an ethical) standpoint, the correct approach is to disclose the troubling language to the court. Ultimately, it is up to the Sixth Circuit to determine whether the language is truly dicta. And in any event, the effective appellate lawyer will use such disclosure as an opportunity to effectively distinguish the case and in the process bolster his or her client’s case. The lawyer’s candor will also enhance the lawyer’s credibility in the eyes of the judges and law clerks (who, you can be sure, will discover the case anyway).
Duty of Competence
ABA Model Rule 1.1 provides that “[a] lawyer shall provide competent representation to a client.” For appellate lawyers, the duty of competence includes such basic notions as being aware of the applicable rules and fully understanding the substantive law at issue in an appeal (even if this means associating with another lawyer who is an expert in a particular field of law). But there is so much more to the duty of competence. The competent lawyer also must know his or her record. When I clerked for the Sixth Circuit, one of the judges asked an attorney a simple factual question regarding the procedural history of the case. The lawyer shot back, “Your Honor, I’m sure; I was not trial counsel.” Obviously it is not a proper response for an appellate attorney to respond to a judge’s inquiry by stating that he or she was not involved in a prior aspect of the case. It is the appellate lawyer’s duty to know all phases of the case, and to be prepared to discuss them at oral argument.
The competent attorney also will give proper focus to the standard of review in a case. Rule 28(a)(9)(B) of the Federal Rules of Appellate Procedure provides that briefs must contain “a concise statement of the applicable standard of review.” Despite the rule, too many appellate attorneys fail to think long and hard about the applicable standard of review only to run into problems at oral argument. Finally, the duty of competence includes the lawyer’s responsibility to know the court’s rules backwards and forward. This includes the Sixth Circuit’s local rules and internal operating procedures, which are available on the court’s website. If the rules do not provide a definitive answer, it makes sense to call the case manager for guidance.
There are a number of ethical and professional pitfalls confronting the unwary appellate practitioner in the Sixth Circuit. Ask any of the judges at the Sixth Circuit, and they likely will agree that appellate practitioners are held to a higher standard of professionalism than other lawyers. Also consider the fact that when appellate lawyers fail to meet the standards of ethics and professionalism, their shortcomings or misdeeds are more likely to be reported in a published court opinion, which not only can be professionally embarrassing but also can lead to potential disciplinary proceedings. Ethics and professionalism matter in the Sixth Circuit.