“Lawyers are an indispensable part of the pursuit of justice.”
The rarely cited Standards of Conduct for the Texas Rules of Appellate Procedure—found in the TRAP following Section Five—begins with this statement. The Standards explain that:
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 than an interpretation or application favored by the lawyer’s clients is in the best interest of the administration of equal justice under law.
But the Standards clarify that as opposed to the often cited Texas Disciplinary Rules of Professional Conduct, these Standards are not intended to be used “as a basis for motions for sanctions, civil liability or litigation.” Nonetheless, the Standards challenge appellate practitioners to handle appeals with certain tenants of integrity. The Standards challenge what we often see or engage in often in the appellate world. For example, the Standards set out the following guidance:
Negative opinions of the court or opposing counsel shall not be expressed unless relevant to a client’s decision process.
So, practitioners should consider whether expressing any of their own negative views of opposing counsel or the court to their client is “relevant to a client’s decision process.” Frankly, we, as attorneys, can easily find ourselves critiquing or commenting on opposing counsel’s strategy (or a judge’s opinion) in a less-than-glowing manner, without regard to whether the comments are helpful or relevant to the client’s decision-making process.
This is a big one. Some trial attorneys are not aware that extensions are routinely granted by the clerk of the court, particularly for the first request, regardless of whether it is opposed or not. The first request does not even reach the court. Asking your client for their “position” on the extension request is unproductive and only hands the client an opportunity to be viewed in a less-than-stellar light with the court.
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.
Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel.
Counsel will not submit reply briefs on issues previously briefed in order to obtain the last word.
The fact that this Standard made it into the written guidance for appellate attorneys should cause us all to pause when sitting down to draft that reply brief. Points and arguments in a reply brief should directly address the response brief and should not merely copy and paste points from the initial briefing.
In addition to guidance for practitioners, the Standards also direct guidance to the courts. Some of the notable points unique to appellate courts include:
The court will take special care not to reward departures from the record.
The court will endeavor to avoid the injustice that can result from delay after submission of a case.
As appellate practitioners are aware, the record on appeal should stand as the entire universe of what the court should consider when making its decision. The guidance on delay, however, is somewhat refreshing considering the long process of moving through an appeal from start to finish.
Finally, the very first standard for appellate practitioners includes the recommendation that counsel “advise their clients of the contents of these Standards of Conduct when undertaking representation.” Consequently, incorporating or attaching the Standards to a representation letter or agreement would ensure that counsel meet this imperative. Then, when that request for an extension pops up, counsel have already set out the expectation that it is the practitioner—not the client—that is charged with agreeing to those reasonable requests.