The Holly­wood ver­sion of the law­yer is a guy who breaks all the rules for the sake of his client or a guy who speaks out of both sides of his mouth at once. Neither is a true pic­ture of the pro­fes­sio­nal. While we are zea­lous advo­ca­tes for our clients, we ope­rate within the rules esta­blished by the courts and the Texas State Bar. Below are the stan­dards of appe­llate con­duct that the state bar has adop­ted for appe­llate attorneys.

The Lawyer’s Duty

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.

  1. Coun­sel will advise their clients of the con­tents of these Stan­dards of Con­duct when under­ta­king representation.
  2. 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.
  3. Coun­sel will main­tain sym­pathe­tic detach­ment, recog­ni­zing that law­yers should not become so clo­sely asso­cia­ted with clients that the lawyer’s objec­tive judg­ment is impaired.
  4. Coun­sel will be faith­ful to their clients’ law­ful objec­ti­ves, while mind­ful of their con­cu­rrent duties to the legal sys­tem and the public good.
  5. 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.
  6. Coun­sel will not fos­ter clients’ unrea­lis­tic expectations.
  7. Nega­tive opi­nions of the court or oppo­sing coun­sel shall not be expres­sed unless rele­vant to a client’s deci­sion process.
  8. Coun­sel will keep clients infor­med and invol­ved in deci­sions and will promptly res­pond to inquiries.
  9. Coun­sel will advise their clients of pro­per beha­vior, inc­lu­ding that civi­lity and cour­tesy are expected.
  10. 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.
  11. A client has no right to demand that coun­sel abuse anyone or engage in any offen­sive conduct.
  12. 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.
  13. 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.
  14. 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.

Law­yers’ Duties to the Court

  1. 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.
  2. An appe­llate remedy should not be pur­sued pri­ma­rily for pur­po­ses of delay or harassment.
  3. Coun­sel should not mis­re­pre­sent, mischa­rac­te­rize, mis­quote, or mis­cite the fac­tual record or legal authorities.
  4. 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.
  5. Coun­sel will pre­sent the Court with a thought­ful, orga­ni­zed, and clearly writ­ten brief.
  6. Coun­sel will not sub­mit reply briefs on issues pre­viously brie­fed in order to obtain the last word.
  7. Coun­sel will con­duct them­sel­ves before the Court in a pro­fes­sio­nal man­ner, res­pec­ting the deco­rum and inte­grity of the judi­cial process.
  8. Coun­sel will be civil and res­pect­ful in all com­mu­ni­ca­tions with the jud­ges and staff.
  9. 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.
  10. 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.

  1. Coun­sel will treat each other and all par­ties with respect.
  2. Coun­sel will not unrea­so­nably withhold con­sent to a reasonable.request for coo­pe­ra­tion or sche­du­ling accom­mo­da­tion by oppo­sing counsel.
  3. Coun­sel will not request an exten­sion of time solely for the pur­pose of unjus­ti­fied delay.
  4. Coun­sel will be punc­tual in com­mu­ni­ca­tions with oppo­sing counsel.
  5. Coun­sel will not make per­so­nal attacks on oppo­sing coun­sel or parties.
  6. Coun­sel will not attri­bute bad moti­ves or impro­per con­duct to other coun­sel without good cause, or make unfoun­ded accu­sa­tions of impropriety.
  7. Coun­sel will not lightly seek court sanctions.
  8. Coun­sel will adhere to oral or writ­ten pro­mi­ses and agree­ments with other counsel.
  9. 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.
  10. 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.
  11. 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 Courts’ 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.

  1. Inap­pro­priate con­duct will not be rewar­ded, while exem­plary con­duct will be appreciated.
  2. The court will take spe­cial care not to reward depar­tu­res from the record.
  3. The court will be cour­teous, res­pect­ful, and civil to counsel.
  4. The court will not dis­pa­rage the pro­fes­sio­na­lism or inte­grity of coun­sel based upon the con­duct or repu­ta­tion of counsel’s client or co-​counsel.
  5. The court will endea­vor to avoid the injus­tice that can result from delay after sub­mis­sion of a case.
  6. 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.
  7. Mem­bers of the court will demons­trate res­pect for other jud­ges and courts.