November 09, 2011 Articles

When Colors Do Not Match: The Serious Business of Appellate Advocacy

The words of Justice Benjamin Cardozo ring as true today as they did almost a hundred years ago when he shared them with the world. But what can they mean for the appellate practitioner?

By Alexander Rayskin

“It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.”

– B. Cardozo, The Nature of the Judicial Process 21 (1922).

These words ring as true today as they did almost a hundred years ago when Justice Cardozo shared them with the world. But what can they mean for the appellate practitioner?

Disclosing Authority Contrary to the Position of the Client
One context in which this idea comes to life for appellate attorneys is the duty to disclose authority that is contrary to the position of their clients. It is well known that a lawyer has an affirmative duty to disclose legal authority in the controlling jurisdiction that is directly adverse to the position of the client if not disclosed by the opposing party. See, e.g., N.Y. Disciplinary Rule (DR) 7-106 (B)(1). The question is: How adverse must the authority be to trigger disclosure under the applicable disciplinary rules? In other words, how do you know “when the colors do not match”? That question turns on whether the differences in the underlying facts or procedural posture of the authority in question are sufficiently significant so as to render the case reasonably distinguishable. The issue is one on which reasonable minds will differ. So what’s an appellate advocate to do?

If an attorney succeeds in maintaining a degree of objectivity about his or her case (admittedly, not always easy but always a necessary feat), it will be clear, at least in many instances, whether the authority in question should be disclosed. In cases of doubt, it is almost always the better practice to choose in favor of disclosure. This is not merely prudent because of the risk of sanctions and ethical violations. Overwhelming harm is done to your client’s case when the judges’ law clerks discover that you have omitted a case that they see, from their own research, you have likely come across in your research. If this happens, the law clerks and the judges on the panel will credit neither your version of the facts nor your application of the law to these facts. The loss of credibility that results is devastating to your mission as an appellate advocate, and your client will undoubtedly bear the consequences.

It would appear that inherent tension exists between zealous client advocacy and the ethical duty to disclose adverse authority. In reality, this conflict goes only so far. After all, if an attorney fails to disclose binding precedent that he or she should have reasonably disclosed, the attorney will not only be doing a disservice to his or her career but will also almost certainly harm his or her client’s case. But, some might wonder, where then is the room for advocacy?

It is true that under established ethical principles, counsel is required to cite to the court all binding authorities, not only the favorable ones. Model Rules of Prof’l Conduct R. 3.3(a)(3); Model Code of Prof’l Responsibility DR 7-106(B)(1). However, the same is not true of the facts: A lawyer need not bring up evidence that will weaken his or her client’s case. Indeed, it may well be malpractice to do so. Model Rules of Prof’l Conduct R. 3.3(a)(3); Model Code of Prof’l Responsibility DR 7-106(B)(1). At the appellate level, however, it is certainly good practice to introduce these facts in any event so that they are presented in the least detrimental way possible, before your adversary commandeers these facts to propel his or her own arguments.

Presenting Arguments That Appear Not Warranted under Existing Law
Another context in which zealous client advocacy and the ethical duty to conform with disciplinary rules are at odds is the presentation of arguments that may appear unwarranted under existing law. This is yet another battleground on which reasonable minds will differ. Should we measure the efficacy of a particular appellate attorney by his or her willingness to push the envelope? Or would an effective appellate advocate steer clear of gray areas when, as Justice Cardozo puts it, “references in the index fail”?

It is well-settled that an attorney may not knowingly assert a position on behalf of a client 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.” ABA Model Rules of Prof’l Conduct R. 3.1. There is often a fine line between an argument based on established law and an argument for extending existing law. The issue turns on whether an argument for the extension, modification, or reversal of existing law is made in good faith.

That issue of good faith, in turn, is in the eye of the beholder. The landscape of potential arguments for modification of existing law can be vast, depending on subtle distinctions of fact and procedural posture that may be drawn between two cases. In such situations, the question of whether counsel could be disciplined for attempting a particular argument is unclear. In the context of a motion for sanctions, it may be far-fetched to think that a court that has already held the law to be contrary to the position the attorney had put forth would agree that the attorney’s position was warranted under existing law. An appellate counsel who takes a more aggressive stance on appeal, assuming the issue was preserved for review, may well risk not only losing the motion, if the court declines to follow his or her invitation to extend the existing law, but also losing his or her reputation.

The uncertainty may push a cautious advocate to avoid raising that argument altogether. This results in an unfortunate situation in which the interests of the client and counsel are not aligned and are, in fact, pointing in opposite directions. A prudent approach will then require a thorough reflection on the case at issue to achieve an optimal balancing of the interests of the attorney and the client. If you undertake it, you will become a better appellate advocate for your client as “the serious business of the judge begins.”

Keywords: litigation, appellate practice, cardozo, legal ethics, zealous advocacy, ABA model rules

Alexander Rayskin is the managing member of the Law Offices of Alexander Rayskin PLLC in New York, New York.

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