Fifth Court of Appeals
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.
Standards for Appellate 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.