LEGAL ETHICS AND MALPRACTICE ISSUES FOR APPELLATE
LEGAL ETHICS AND MALPRACTICE ISSUESFOR APPELLATE LAWYERSPresented By:DAVID L. HORANJones DayRANDY JOHNSTONJohnston Tobey3308 Oak Grove AvenueDallas, Texas 75204(214) 741-6260 Phone (214) 741-6248 FaxEmail Address: Randy@Jtlaw.ComWritten By:DAVID L. HORAN1Jones Day2727 N. Harwood St.Dallas, Texas 75201dlhoran@jonesday.comState Bar of Texas26TH ANNUALADVANCED CIVIL APPELLATE PRACTICE COURSESeptember 6–7, 2012AustinCHAPTER 171The views expressed are solely those of the author and should not be attributed to his firm or its clients.
David L. HoranPartnerEXPERIENCE HIGHLIGHTSPNC Bank (formerly, National City Bank) securescomplete appellate victory before the Dallas Courtof AppealsSpecial Committee of the Board of Directors ofMoneyGram International defeats motion forpreliminary injunction seeking to blockrecapitalization of MoneyGramdlhoran@jonesday.comDallasSpecialty Products and Bondex International seekbankruptcy protectionAREAS OF FOCUS 1.214.969.4548 (T) 1.214.969.5100 (F)Issues & AppealsState & Local TaxationClass Action & Multidistrict LitigationDavid Horan focuses on appellate litigation and analyzing and briefing complexHONORS & DISTINCTIONSissues before federal and state courts at all levels. He has extensive appellate"Best Lawyers in Dallas," D Magazine(2011 & 2012)experience and has conducted oral argument before the United States SupremeCourt, federal and state courts of appeals, and federal trial courts. David's practiceextends to all aspects of litigation, and he has substantial experience litigatingclass action issues and challenges to arbitration awards.Texas Super Lawyers "Rising Star" (everyyear since 2005)"Best Lawyers Under 40," D Magazine(2006)For over seven years, David has been a member of a team of Firm lawyersrepresenting Expedia, Hotels.com, and Hotwire in dozens of putative class actionand individual lawsuits by municipalities and consumers regarding online travelcompanies' hotel occupancy tax recovery charges and service fees. He argued afederal sentencing appeal, Gould v. U.S., before the United States Supreme Courtin October 2010. David also was lead counsel in a successful appellaterepresentation in which the Fifth Circuit decided a civil RICO issue of firstEDUCATIONYale University (J.D. 2000; Book ReviewsEditor, Law Journal; Prize trial finalist,Thomas Swan Barristers' Union Mock TrialCompetition); University of Notre Dame (B.A.in Government and Philosophy summa cumlaude 1996; Phi Beta Kappa)impression. In recent years, he has successfully represented on appeal Firmclients including CBS Corporation, First American Title Insurance, NationalBAR ADMISSIONSHeritage Insurance (a subsidiary of Electronic Data Systems Corporation), PNCTexas; U.S. Supreme Court; U.S. Courts ofAppeals for the Second, Third, Fourth, Fifth,Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh,and D.C. Circuits; and U.S. District Courts forthe Northern, Southern, Eastern, andWestern Districts of TexasBank, and R.J. Reynolds.David leads the Issues & Appeals Practice in the Dallas Office. He has publishedarticles and given presentations on appellate, civil procedure, criminal law, legalethics, and legal writing matters.CLERKSHIPSLaw Clerk to: Judge Patrick E.Higginbotham, U.S. Court of Appeals, FifthCircuit (2001-2002) and Judge Janet C. Hall,U.S. District Court, District of Connecticut(2000-2001)
COYT RANDAL JOHNSTONJOHNSTON TOBEY, P.C.3308 OAK GROVE AVENUEDALLAS, TEXAS 75204(214) 741-6260 Phone (214) 741-6248 FaxEmail address: randy@jtlaw.comWebsite: www.johnstontobey.comRandy Johnston is the author of the book Robbed at Pen Point and an attorney with the firm of Johnston Tobey PC inDallas, Texas. He attended The University of Texas School of Law where he graduated with Honors in 1974. Mr.Johnston’s practice concentrates on legal malpractice and professional liability. He is a member of the InternationalAcademy of Trial Lawyers, the American Board of Trial Advocates, the Texas and Dallas Trial LawyersAssociations, and is a former President of the Dallas Chapter of the American Board of Trial Advocates and a formerPresident of the Dallas Trial Lawyer’s Association. In 2012, he was one of five to receive the Texas Trial LegendsAward from the Dallas Bar Association’s Tort & Insurance Practice Section and in 2010, he was one of eightrecipients of “A Standing Ovation Award” recognizing him as an outstanding volunteer to the Texas Bar CLEprogram.EDUCATIONThe University of Texas School of Law, Juris Doctor with HonorsHonors:Chairman, Legal Research BoardClerk, Lt. Governor’s Conference on Ethics in GovernmentBrigham Young University, Bachelor of Arts DegreeMajor:EnglishHonors:Track Scholarship (intermediate hurdles)Associate Editor, Wye Magazine (campus literary publication)President, English Circle (Club of English Majors)Pampa High School, Pampa, TexasLICENSES/CERTIFICATIONSLicensed by the State Bar of Texas and Federal Courts in TexasBoard Certified: ”Civil Trial Law,” Tex. Bd. of Legal Specialization, 1981 – presentTexas Board of Legal Specialization, Member 1983-1985Personal Injury Advisory Commission, Member 1993-2000ACKNOWLEDGMENTS/HONORS2010 “A Standing Ovation Award” from staff of the State Bar: outstanding volunteer to the State Bar CLE Program.Dallas Bar Association - Presidential Citation for Law Jam 2; program for fundraising for legal aid for the poor.Texas Lawyer – “The GoTo Guide” 2007, for Legal Malpractice in TexasD Magazine - Best Lawyers in DallasTexas Monthly - Texas’ Super LawyersWho’s Who in American Law
Legal Ethics and Malpractice Issues for Appellate LawyersChapter 17TABLE OF CONTENTSI.INTRODUCTION . 1II.SELECTED LEGAL ETHICS ISSUES FOR TEXAS APPELLATE LA WYERS . lA. Citing And Discussing Legal Authorities . II. Duty to disclose authority . 12. Manner of citing and discussing authority . !B. Distorting or Misrepresenting the Record . 2C. Criticizing Lower Courts . 3Ill. SELECTED LEGAL MALPRACTICE ISSUES FOR TEXAS APPELLATE LA WYERS . .4A. Basic Mistakes . 4I. Deadlines . 42. Compliance with rules of appellate procedure . 5B. Ethical Violations Resulting In Dismissal . 6C. Positional Conflicts Of Interest. . 6D. Competence to Handle an Appeal . 7E. Co1nmunications With The Client . 7IV. CONCLUSION . 7APPENDIX I: EXCERPTS FROM TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT . ! 0APPENDIX 2: EXCERPTS FROM MODEL RULES OF PROFESSIONAL CONDUCT . IIAPPENDIX 3: EXCERPTS FROM TEXAS STANDARDS FOR APPELLATE CONDUCT . l2APPENDIX 4: EXCERPTS FROM THE TEXAS LAWYER'S CREED-A MANDATE FORPROFESSIONALISM . 13
Legal Ethics and Malpractice Issues for Appellate LawyersChapter 17TABLE OF AUTHORITIESCASESAlameda Films S.A. de C V v. Authors Rights Restoration Corp.,331 F.3d 472 (5th Cir. 2003) . 6Big Dipper Entertainment, LLC v. City of Warren,641 F.3d 715 (6th Cir. 2011) . 3Continental Carbon Co. v. Sea-Land Serv., Inc.,27 S.W.3d 184 (Tex. App.—Dallas 2000, pet. denied) . 6Craig v. Police Jury Grant Parish,347 Fed. Appx. 119 (5th Cir. 2009) . 5Davis v. Rupe,307 S.W.3d 528 (Tex. App.—Dallas 2010, no pet.) . 3Dube v. Eagle Global Logistics,314 F.3d 193 (5th Cir. 2002), vacated as moot (5th Cir. Feb. 4, 2003) . 2Gonzalez-Servin v. Ford Motor Co.,662 F.3d 931 (7th Cir. 2011) . 1Grider v. Mike O’Brien, P.C.,260 S.W.3d 49 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) . 4In Interest of K.A.F.,160 S.W.3d 923 (Tex. 2005). 4In re A.D.,287 S.W.3d 356 (Tex. App.—Texarkana 2009, pet. denied) . 6In re Dresser Indus., Inc.,972 F.2d 540 (5th Cir. 1992) . 1Justice v. Town of Cicero, Ill.,682 F.3d 662 (7th Cir. 2012) . 4, 5Kinsley v. Lakeview Reg. Med. Ctr. LLC,570 F.3d 586 (5th Cir. 2009) . 5McGuire, Craddock, Strother & Hale, P.C. v. Transcontinental Realty Investors, Inc.,251 S.W.3d 890 (Tex. App.—Dallas 2008, pet. denied) . 6Medley v. Thaler,660 F.3d 833 (5th Cir. 2011) . 2, 3Millhouse v. Wiesenthal,775 S.W.2d 626 (Tex. 1989). 4Resendez v. Maloney,No. 03-09-00453-CV, 2010 WL 5395674 (Tex. App.—Houston [1st Dist.] Dec. 1, 2010, pet. denied) . 4Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist.,647 F.3d 156 (5th Cir. 2011) . 3ii
Legal Ethics and Malpractice Issues for Appellate LawyersChapter 17Schlafly v. Schlafly,33 S.W.3d 863 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) . 2TFJA, LP v. Tex. Comm’n on Envtl. Quality,368 S.W.3d 727 (Tex. App.—Austin 2012, pet. filed) . 5Trade-Winds Envtl. Restoration, Inc. v. Stewart Dev., LLC,409 Fed. Appx. 805 (5th Cir. 2011) . 1Twist v. McAllen Nat’l Bank,248 S.W.3d 351 (Tex. App.—Corpus Christi-Edinburg 2007, orig. proceeding) . 6United States v. Estrada,No. 01-40117, 31 Fed. Appx. 158, 2001 WL 1751408 (5th Cir. Dec. 17, 2001) . 1United States v. Rangel,442 Fed. Appx. 158 (5th Cir. 2011) . 4Vince v. Rock Cty., Wisc.,604 F.3d 391 (7th Cir. 2010) . 5Walker v. City of Bogalusa,168 F.3d 237 (5th Cir. 1999) . 3Zanchi v. Lane,349 S.W.3d 97 (Tex. App.—Texarkana 2011, no pet.) . 2RulesFed R. App. P. 3 . 5Fed R. App. P. 31 . 55th Cir. R. 42.3 . 5Model Rules of Prof’l Conduct Preamble . 6Model Rules of Prof’l Conduct R. 1.1 . 7Model Rules of Prof’l Conduct R. 1.4 . 7Model Rules of Prof’l Conduct R. 1.7 cmt. . 7Model Rules of Prof’l Conduct R. 3.3 . 1, 2Model Rules of Prof’l Conduct R. 3.3 cmt. . 1Model Rules of Prof’l Conduct R. 8.4 . 1, 2, 3Tex. Disciplinary Rules of Prof’l Conduct Preamble . 6Tex. Disciplinary Rules of Prof’l Conduct R. 1.01 . 7Tex. Disciplinary Rules of Prof’l Conduct R. 1.03 . 7Tex. Disciplinary Rules of Prof’l Conduct R. 1.06 cmt. . 7Tex. Disciplinary Rules of Prof’l Conduct R. 3.03 . 1, 2iii
Legal Ethics and Malpractice Issues for Appellate LawyersChapter 17Tex. Disciplinary Rules of Prof’l Conduct R. 3.03 cmt. . 1Tex. Disciplinary Rules of Prof’l Conduct R. 8.02 . 3Tex. Disciplinary Rules of Prof’l Conduct R. 8.04 . 1, 2Tex. R. App. P. 38.8 . 5Tex. R. App. P. 42.3 . 5Tex. R. App. P. 44.3 . 5Other AuthoritiesJohn S. Dziekowski, Positional Conflicts of Interest, 71 Tex. L. Rev. 457 (1993) . 6Thomas S. Leatherbury, “Different Views on Briefing Waiver from the Courts of Appeals,” State Bar ofTexas 25th Annual Advanced Civil Appellate Practice Course (Sept. 8-9, 2011). . 5Tex. Lawyer’s Creed—A Mandate for Professionalism . 6Tex. Standards for Appellate Conduct . 6iv
Legal Ethics and Malpractice Issues for Appellate LawyersChapter [ ]The comments to both Texas Rule 3.03(a) andModel Rule 3.3(a) explain that “[a] lawyer is notrequired to make a disinterested exposition of the law,but should recognize the existence of pertinent legalauthorities” and that “[t]he underlying concept is thatlegal argument is a discussion seeking to determine thelegal premises properly applicable to the case.” TEX.DISCIPLINARY RULES OF PROF’L CONDUCT R. 3.03cmt.; MODEL RULES OF PROF’L CONDUCT R. 3.3 cmt.(substituting “must recognize the existence” for“should recognize the existence”).LEGAL ETHICS ANDMALPRACTICE ISSUESFOR APPELLATE LAWYERSI.INTRODUCTIONThis paper provides a basic survey of some of thelegal ethics and malpractice issues that can arise inappellate practice in the Texas federal and state courts,including discussion of some relatively recent case lawfrom the Texas state appellate courts and the UnitedStates Court of Appeals for the Fifth Circuit. Thispaper does not cover, among others, issues relating toattorneys’ fees or retainers or various attorney-clientissues arising at the time of the outset of an appellateengagement, including various aspects of potentialconflicts of interest.1.Duty to disclose authorityCourts around the country have condemnedattorneys’ failures to cite to controlling legalprecedents, and the Texas federal and state courts areno exception. For example, a panel of the Fifth Circuitlast year criticized a party for failing in its openingappellant’s brief to even cite a Fifth Circuit decisionrejecting the same argument made by the same party inan earlier appeal handled by the same counsel. TradeWinds Envtl. Restoration, Inc. v. Stewart Dev., LLC,409 Fed. Appx. 805, 807-08 & nn.2-3 (5th Cir. 2011).The Court of Appeals did not mince words: Theappellant’s “failure to cite our [earlier] opinion in itsopening brief, filed several months after our opinion inthat case was issued, falls well short of fulfillingcounsel’s duty of candor to the court. Counsel isreminded that practice before this court is a privilege,not a right.” Id. at 808 n.3.As one federal appellate court rece
II. SELECTED LEGAL ETHICS ISSUES FOR TEXAS APPELLATE LAWYERS A. Citing And Discussing Legal Authorities The ethical rules applicable to lawyers in the state and federal appellate courts in Texas leave no doubt of the importance of properly citing and d
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