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On February 1, 1999, the Supreme Court of Texas and the
Court of Criminal Appeals issued the following
order pertaining to the Standards For Appellate Conduct:
At
the request of the Council of the Appellate Practice and Advocacy Section
of the State Bar and the Board of Directors of the State Bar of Texas,
and based upon their submission to our Courts, the Supreme Court of Texas
and the Texas Court of Criminal Appeals hereby adopt and promulgate the
attached Standards of Appellate Conduct. 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 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.
- Counsel will advise their clients of the contents of these Standards
of Conduct when undertaking representation.
- 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.
- Counsel will maintain sympathetic detachment, recognizing that
lawyers should not become so closely associated with clients that the lawyer's
objective judgment is impaired.
- Counsel will be faithful to their clients' lawful objectives,
while mindful of their concurrent duties to the legal system and the public
good.
- 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.
- Counsel will not foster clients' unrealistic expectations.
- Negative opinions of the court or opposing counsel shall not be
expressed unless relevant to a client's decision process.
- Counsel will keep clients informed and involved in decisions and
will promptly respond to inquiries.
- Counsel will advise their clients of proper behavior, including
that civility and courtesy are expected.
- 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.
- A client has no right to demand that counsel abuse anyone or
engage in any offensive conduct.
- 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.
- 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.
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.
- 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.
- An appellate remedy should not be pursued primarily for purposes
of delay or harassment.
- Counsel should not misrepresent, mischaracterize, misquote, or
miscite the factual record or legal authorities.
- 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.
- Counsel will present the Court with a thoughtful, organized, and
clearly written brief.
- Counsel will not submit reply briefs on issues previously briefed
in order to obtain the last word.
- Counsel will conduct themselves before the Court in a professional
manner, respecting the decorum and integrity of the judicial process.
- Counsel will be civil and respectful in all communications with
the judges and staff.
- 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.
- 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.
- Counsel will treat each other and all parties with respect.
- Counsel will not unreasonably withhold consent to a reasonable.
request for cooperation or scheduling accommodation by opposing counsel.
- Counsel will not request an extension of time solely for
the purpose of unjustified delay.
- Counsel will be punctual in communications with opposing counsel.
- Counsel will not make personal attacks on opposing counsel or
parties.
- Counsel will not attribute bad motives or improper conduct to
other counsel without good cause, or make unfounded accusations of impropriety.
- Counsel will not lightly seek court sanctions.
- Counsel will adhere to oral or written promises and agreements
with other counsel.
- 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.
- 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.
- 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.
- Inappropriate conduct will not be rewarded, while exemplary conduct
will be appreciated.
- The court will take special care not to reward departures from
the record.
- The court will be courteous, respectful, and civil to counsel.
- The court will not disparage the professionalism or integrity
of counsel based upon the conduct or reputation of counsel's client or
co-counsel.
- The court will endeavor to avoid the injustice that can result
from delay after submission of a case.
- 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.
*Courtesy of the Appellate Section of the Houston Bar Association
May 1999 (Sharon McCalley)
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