So you’ve been out of law school for a few years, learned some invaluable lessons about establishing a client base, and want to focus on becoming an appellate practitioner. Or perhaps you’re an appellate judge or justice who is leaving the bench and believe that your judicial experience can be useful in private practice. Or maybe you’re in the management of a firm that plans to expand and enhance its appellate practice by bringing in former appellate judges. What next? What are the practical and ethical considerations of these moves?
A panel at the 2021 Summit of the Appellate Judges Education Institute tackled these issues. The panel was moderated by the Honorable Albert Diaz, a judge on the United States Court of Appeals for the Fourth Circuit. The panelists included Matt Leerberg, who practices in Raleigh, North Carolina as head of the appellate practice section of Fox Rothschild, LLP; Elizabeth Lang-Miers, a former justice on the Texas Court of Appeals for the Fifth District who now practices with Locke Lord, LLP in Dallas, Texas; Jay Breakstone, who is an appellate attorney and general counsel to the firm of Parker Waichman, LLP in New York City; and Robert Mandel, who practices appellate law with Zuber Lawler, LLP in Phoenix, Arizona.
The panel began by discussing the factors that a firm should consider before hiring a former appellate judge or that an active jurist should consider before shifting to private practice. Matt Leerberg pointed out that his firm has built a successful appellate team composed of former appellate judges and experienced appellate practitioners. He listed questions that need to be addressed early in the process when a firm is considering bringing in a former judge or justice. What role does the firm expect the judge to fill? Will the judge be a partner or “of counsel?” Is the judge’s role to build an appellate practice from scratch, or will the judge be joining an established appellate group in the firm? Is the judge expected to be a rainmaker, or will the judge be writing briefs and making court appearances on a regular basis? Is the firm planning to hold out the judge as part of its marketing plan (“Look who has joined us!”) or is it hoping to learn and capitalize on the deep dark secrets of a court before which the firm often appears? Does the judge have political contacts and is the firm hoping that the judge can capitalize on those contacts? Is the judge competent in matters of technology? The world of legal practice that the judge knew before ascending to the bench is most likely lost to history, yet ethical rules require at least minimum technical competence. In short, the expectations of both the firm and the judge should be explored openly and at length before either signs on the dotted line.
What are the ethical implications of such a hire? Former justice Lang-Miers pointed out that a sitting judge who is contacted by a firm about possible employment should immediately run a conflicts check to see if that firm has any cases pending before the judge or the judge’s court. An appearance of impropriety could arise from any judicial action that affects that firm. Moderator Diaz also pointed out that federal law requires judges publicly to report when and if they engage in any hiring discussions with a law firm.
Former justice Lang-Miers also observed that a former judge will face some “interesting” problems upon entry into private practice. Co-workers may not know what to call the former judge or how to behave around him or her. The judge will quickly learn that practitioners organize their days in wholly different ways than judges do. For example, after a judge switches to “the dark side,” he or she will most likely become responsible for tracking the dreaded billable hour and participating in firm marketing.
Matt Leerberg pointed out the value of having an appellate team. Different attorneys have different skills, and a team allows the firm to offer proven researchers, writers, and presenters whose combined skills ensure an excellent product for the client. In addition, such a team can provide effective moot court experience before the case is argued for real. Former appellate judges can bring a pragmatic realism to the team’s work.
The discussion then turned to the nuts and bolts of appellate practice. Robert Mandel observed the importance of assessing the status and history of a litigant before accepting the matter on appeal. Was the litigant represented at trial? A client who tried their case pro se is likely to be problematic as the appellate counsel finds out the hard way that the client presented no coherent theory of the case, unknowingly waived some critical issues while failing to preserve others, and most likely has an unrealistic view of what can be achieved on appeal. Similar problems can arise if the litigant had a succession of attorneys at the trial level—another danger sign for would-be appellate counsel.
Once an appellate attorney decides to take the case, the focus shifts to cultivating the right relationship with trial counsel. The trial attorney who handled the case is likely to harbor some fear that appellate counsel may second-guess trial decisions or strategy, or raise the issues of ineffective assistance of counsel or even malpractice. To the extent possible, appellate counsel should calm those fears and instead use trial counsel as a strategic partner to point out key parts of the record, important testimony, etc. There are also, of course, ethical barriers to having appellate counsel consider malpractice claims while also pursuing the direct appeal.
The potentially uneasy triangle of party, trial counsel, and appellate counsel triggers the basic question, “just who is the client?” While Robert Mandel tends to treat the litigant as the client on appeal, Jay Breakstone advised that he treats the trial attorney as the client. For Jay, the trial attorney is the person or people he deals with during the appeal and to whom he turns for payment of his fee. These two different approaches are reflected in the engagement letters each uses, copies of which were provided in the materials given to Summit attendees (you should attend next year’s Summit so you can get such useful swag).
Robert and Jay discussed their marketing techniques. Both observed that effective development of an appellate practice requires a good relationship with the trial bar. A capable appellate lawyer can preserve the trial attorney’s win or pull the trial attorney and client out of the fire if the trial ended badly. Either result is catnip for trial counsel. A good result on appeal will lead to repeat business. Robert pointed out that appellate counsel may have to be diplomatic by, for example, asking trial counsel to see the case from a different point of view. Appellate counsel will often have to tell trial counsel—gently, of course—what results are realistically possible on appeal.
Both Jay and Robert strongly advised that it is critical to be candid about the costs of an appeal. They agreed that a full appeal may be a six-figure proposition. When negotiating representation, appellate counsel should resist the temptation to lowball the estimated costs and fees. An appeal with an extensive record, numerous transcripts, and several complex issues that will require wide-ranging research is a major undertaking. Jay noted that he either (1) sets a flat fee, or (2) works out a flat fee with contingency, or (3) adopts a pure contingency arrangement. These approaches give him the opportunity to devote the necessary time and attention to the case without having to worry about tracking hours.
The panel ran out of time long before it ran out of topics. Even so, the discussion highlighted both the various ethical traps that may lurk when a judge or justice leaves the bench for private practice, and the various approaches to creating, building, and maintaining an appellate practice that the panelists successfully followed.