January 10, 2020 Feature

Appealing in Good Faith

Here’s how to avoid sanctionable conduct in appeals.

Steven S. Fleischman and Jacob M. McIntosh

Download a printable PDF of this article.

The preamble to the ABA Model Rules of Professional Conduct instructs that “[a]s advocate, a lawyer zealously asserts the client’s position,” but the preamble makes clear that such advocacy must be done “under the rules of the adversary system.” Yet, as every reader has probably experienced, many lawyers bend, break, and ignore our system’s rules under the guise of “zealous advocacy.” Doing so is especially tempting in the context of appeals, where lawyers may have one final chance to secure a win in their case.

Litigants should not let the fear of sanctions intimidate them out of making creative legal arguments.

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