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.