THE FIFTH DEADLY SIN:

Appellate PracticeMarch 17, 2015

WRATH

WRATH: 1. Strong, vengeful anger or indignation;

2. Retributory punishment for an offense or

crime: divine chastisement.

Merriam-Webster’s Collegiate Dictionary, Eleventh Edition.

TWO FORMS OF WRATH:

1. Expressions of wrath by attorneys and

judges; and

2. Incurring the wrath of the Court.

CHAPTER 4. RULES OF PROFESSIONAL CONDUCT

PREAMBLE: A LAWYER'S RESPONSIBILITIES

A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.

As a REPRESENTATIVE of clients, a lawyer performs various functions.

As an ADVISER, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications.

As an ADVOCATE, a lawyer zealously asserts the client's position under the rules of the adversary system.

As a NEGOTIATOR, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

As an EVALUATOR, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs.

A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others.

A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.

While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

Within the framework of these rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.

These principles include:

the lawyer's obligation to protect and pursue a client's legitimate interests;

within the bounds of the law;

while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.

Lawyers are officers of the court and they are responsible to the judiciary for the propriety of their professional activities. . . .

Rule 4-1.1. COMPETENCE

COMPETENT REPRESENTATION REQUIRES:

• The legal knowledge

• Skill

• Thoroughness and preparation reasonably necessary for the representation.

A LAWYER SHALL ACT WITH REASONABLE DILIGENCE AND PROMPTNESS IN

REPRESENTING A CLIENT.

Rule 4-1.3. DILIGENCE

RULE 4-3.3. CANDOR TOWARD THE TRIBUNAL

(a) False evidence; duty to disclose. A lawyer shall not knowingly:

(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) 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; or

Comment . . .

Furthermore, as stated in subdivision (a)(3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party.

RULE 4-4.4. RESPECT FOR RIGHTS OF THIRD PERSONS

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

RULE 4-8.4. MISCONDUCT

A lawyer shall not:

(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic;

RULE 4-8.2. JUDICIAL AND LEGAL OFFICIALS.

(a) Impugning Qualifications and Integrity of Judges or Other Officers. A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.

(b) Candidates for Judicial Office; Code of Judicial Conduct Applies. A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Florida's Code of Judicial Conduct.

CODE OF JUDICIAL CONDUCT

For the State of Florida

Preamble

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

…

CODE OF JUDICIAL CONDUCT

CANON 1

A judge shall uphold the integrity and independence of the judiciary.

CANON 1

An independent honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

CODE OF JUDICIAL CONDUCT

Canon 3

A Judge Shall Perform the Duties of Judicial Office Impartially and

Diligently

Canon 3

Adjudicative Responsibilities include . . .

(3) A judge shall require order and decorum in proceedings before the judge.

(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control.

(5) A judge shall perform judicial duties without bias or prejudice.

CANON 3

Commentary

Canon 3B(4). The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and business-like while being patient and deliberate.

CODE OF JUDICIAL CONDUCT

Canon 4

A Judge Is Encouraged to Engage in Activities to Improve the Law, the Legal

System, and the Administration of Justice

Canon 4

A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;

(2) undermine the judge’s independence, integrity, or impartiality;

(3) demean the judicial office;

(4) interfere with the proper performance of judicial duties;

(5) lead to frequent disqualification of the judge; or

(6) appear to a reasonable person to be coercive.

INVALID APPEALS

MAKING SURE IT’S NOT FRIVOLOUS

ORANGE COUNTY V. HEWLINGS39 FLA. L. WEEKLY D 2572

DECEMBER 12, 2014

RULE 4-1.1RULES REGULATING THE FLORIDA BAR

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation

reasonably necessary for the representation.

RULE 4-1.3 RULES REGULATING THE FLORIDA BAR

A lawyer shall act with reasonable diligence and promptness in representing a client.

THE HEWLINGS OPINION

“We reject Appellant's arguments once again and impose sanctions for the filing of a frivolous appeal.”

“Before addressing the merits of this appeal, we are constrained to address the question of our jurisdiction…. We expect lawyers to thoroughly research and address all of the issues that are presented, especially one as important as our jurisdiction.”

“It is as if counsel for the Appellant, who was the same counsel in Hewlings I, slept through the entire prior appellate proceeding and then failed to read either the opinion or order.”

“Indeed, Appellant’s suggestion that it may incrementally dole out its arguments pertaining to the meaning of a single statute in separate appeals borders on ludicrous.”

“Accordingly, we grant the motion and impose as a sanction for this frivolous and abusive appeal an award of attorney’s feed in favor of Appellee.”

Orange County v. Hewlings39 Fla. L. Weekly D 2572 December 12, 2014

DEALING WITH DIFFICULT JUDGES

Model Code of Judicial Conduct: Canon 1

A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Model Code of Judicial Conduct: Canon 2

A judge shall perform the duties of judicial office impartially, competently, and diligently.

CODE OF JUDICIAL CONDUCT

Canon 3

A Judge Shall Conduct the Judge’s Personal and Extrajudicial Activities to Minimize the

Risk of Conflict with the obligations of judicial office.

…

Canon 3B(4). The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and business-like while being patient and deliberate.

Canon 3B(5). A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge's direction and control.

CODE OF JUDICIAL CONDUCT

Canon 4

A Judge Is Encouraged to Engage in Activities to Improve the Law, the Legal

System, and the Administration of Justice

A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;

(2) undermine the judge’s independence, integrity, or impartiality;

(3) demean the judicial office;

(4) interfere with the proper performance of judicial duties;

(5) lead to frequent disqualification of the judge; or

(6) appear to a reasonable person to be coercive.

Attorneys' Incompetence

In Representing Clients On Appeal

RULE 4-1.1 COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

RULES OF PROFESSIONAL CONDUCT 

A LAWYER SHALL ACT WITH REASONABLE DILIGENCE AND PROMPTNESS IN REPRESENTING A CLIENT.

RULE 4-1.3 DILIGENCE

Pippin v. State, 567 So.2d 990, 991-92 (Fla. 1st DCA 1990)

Previously sanctioned lawyer filed inadequate briefs (“its contents are totally inadequate to apprise the court of the nature of the proceedings below and any error alleged to have occurred”

Court ordered lawyer to resubmit briefs , which lawyer failed to do.

The court imposed $15,000 in sanctions, dismissed some of the appeals without prejudice for the appellants to secure competent counsel, and referred the matter to the Florida Bar Grievance Committee.

Attorney failed to file his brief eleven months after the due date so order to show cause issued, to which the attorney did not respond.

The appellate court then ordered the attorney to personally appear and show cause why sanctions should not be imposed.

Upon appearing in court, the attorney said that he deliberately disobeyed the court's order to respond in writing because "he could more effectively present the matter in person than he could in writing." Sanctions imposed

Moose v. State, 519 So. 2d 61 (Fla. 2d DCA 1988)

“BECAUSE I FIND BOTH THE WRITTEN AND ORAL PRESENTATIONS OF COUNSEL FOR THE APPELLANT FUNDAMENTALLY LACKING, I WOULD STRIKE THE APPELLATE BRIEFS, DISCHARGE COUNSEL, AND DIRECT THE TRIAL COURT TO APPOINT NEW APPELLATE COUNSEL FOR THE APPELLANT. CAPITAL CASES REPRESENT THE MOST SERIOUS CATEGORY OF CASES REVIEWED BY THIS COURT AND SUCH CASES REQUIRE DILIGENT AND COMPETENT ADVOCACY BY COUNSEL. WHILE THIS COURT HAS INHERENT RESPONSIBILITY TO ASSURE SUCH REPRESENTATION, THE FLORIDA LEGISLATURE HAS EXPLICITLY CALLED UPON THE COURTS TO TAKE RESPONSIBILITY FOR ASSURING SUCH REPRESENTATION IN CAPITAL LITIGATION. WE SHOULD HONOR THAT CALL HERE.” 

Smith v. State, 998 So.2d 516 (2008) Anstead, dissent

Kansas attorney was disbarred for "inexplicable incompetence" both at the trial court level and the appellate level in his representation of a defendant charged with murder.  Dressed as Thomas Jefferson for oral argument. 

ATTORNEYS BEHAVING BADLY ON APPEAL

LIEBERMAN V. LIEBERMAN

Pertinent facts: Gary Lieberman was previously married to Karen Lieberman.

However, his current wife, Lourdes Ferrer, was representing him in post-dissolution proceedings.

The former wife successfully moved to disqualify the current wife as counsel for the ex-husband arguing Rule Regulating the Florida Bar 4-3.7(a) prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client and the current wife was a material witness in a contempt proceeding initiated by the former wife.

However, the trial court’s order was clearly impermissibly overly broad and did not allow the current wife to serve as Mr. Lieberman’s counsel in other pre-trial, trial and post trial matters.

The Appellate Court could have simply granted the petition and quashed the trial court’s order of disqualification.

However, the Appellate Court found that counsel for the former wife transformed a simple matter into an unnecessary and protracted controversy by failing to acknowledge clear and unambiguous controlling Florida law directly adverse to his client’s position.

OTHER CONCERNS EXPRESSED BY THE APPELLATE COURT

The tenor of the reply brief filed by the current wife of Mr. Lieberman was one of disrespect and bordered on contempt.

Contained unprofessional comments directed to opposing counsel and the trial judge.

The Appellate Court questioned whether the current wife of Mr. Lieberman was too personally involved with the issues and should consider withdrawing.

RULING OF THE APPELLATE COURT

Court awarded appellate attorney’s fees and costs on the former wife for “her counsel’s baseless defense in this proceeding.”

RULE 4-3.1RULES REGULATING THE FLORIDA BAR

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.

RULE 4-4.3, RULES REGULATING THE FLORIDA BAR

Rule 4–3.3. Candor Toward the Tribunal

(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:

 

(3) 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.

RULE 4-2.1, RULES REGULATING THE FLORIDA BAR

An attorney has a duty as an adviser to exercise independent professional judgment and render candid advise.

EXAMPLE OF WHAT NOT TO SAY IN AN APPELLATE BRIEF

Thomas v. Patton, 939 So.2d 139, - involved a plaintiff’s appeal of an order granting defendants summary judgment on claims of invasion of privacy and conspiracy to defame.

The Appellate Court affirmed the order granting summary judgment.

The Appellate Court noted that the appellant had raised seven points on appeal, none of which had merit. As a result, awarded fees to appellees pursuant to section 57.105(1)(b), Florida Statutes.

In taking the action, the Appellate Court indicated that they considered many factors. One of which was how the case was presented and that the briefs filed by appellant contained “many inappropriate phrases and references:

“Poison Pen Letter” and “Poison Pen Campaign.”

“Twilight Zone Doctors”

“Judicial Murder”

Quotes on of the trial court’s findings and then states, “Baloney”.

“Appellees’ citation of miscellaneous Internet screwballs”

“Appellees accused Appellant of attempted murder and claimed they had medical evidence to back it up. They lied.”

The Final Summary Judgment, however, disparages honest journalism by legitimizing an Internet lynch mob and elevating porno queens to the level of supreme court judges.

In the oral argument before the Appellate Court, appellant persisted in using inappropriate phrases and presenting meritless legal arguments.

When questioned about the language in the brief the appellant had no explanation and made no apologies, just simply stating “the language in my first draft was a lot worse.”

WHAT THE BRIEF SAID:

Interestingly, the Judge of Compensation Claims recognized the following:... In deposition he testified that he used [the cane] all of the time. However, he also testified that he can walk without the cane, though not well, and can stand without the cane ... On video, the Claimant walked without [sic] the cane except for March 13, 2004. Pavilion Apartments v. Wetherington, 943 So.2d 226 (Fla. 1st DCA 2006)

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WHAT THE RULING ACTUALLY SAID:

On video the Claimant walked with the cane except for March 13, 2004.Pavilion Apartments v. Wetherington, 943 So.2d 226 (Fla. 1st DCA 2006)

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INTEMPERATE LANGUAGE

Defendants’ briefs before this Court lack the professional tone we expect from members of the bar. The derisive references to the trial court’s “hyperbole” and “erudition,” and to the court’s decision as “ludicrous,” “inane,” “risibl[e],” and “disingenuous” distract from the arguments on the merits in this case and do not advance the quality of justice…Northern Sec. Ins. Co. v. Mitec Electronics, Ltd., 184 Vt. 303 (2008)

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EVEN MORE INTEMPERATE…

“... it would appear to be an exercise in futility to even try and get a fair hearing before this Court ...” and, as stated at the end of paragraph four of this same Motion, “We do not come to hear Nothing, which is precisely what a Per Curiam Affirmed opinion tells us, NOTHING! What a cop-out”Banderas v. Advance Petroleum, Inc., 718 So.2d 376 (Fla. 3d DCA 1998)

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RUINED WITH A BAD APOLOGY

“My intent in writing the Motion was based on my belief that my comments and criticism did not exceed the boundaries of truth ...”“I do not believe that what I wrote could be construed as being false ...”

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4-1. CLIENT-LAWYER RELATIONSHIPRULE 4-1.1 COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

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RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL

(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

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4-4. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTSRULE 4-4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person;

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IN HONOR OF ST. PATRICK'S DAY

May you have the hindsight to know where you’ve been,

the foresight to know where you are going,

and the insight to know when you have gone too far.