Appeals Court Enforces Professional Standards for Counsel
The U.S. Court of Appeals for the Third Circuit affirmed the trial court’s dismissal and granted the creditors’ Rule 38 motion. Rule 38 authorizes compensatory damages to reimburse appellees who “must defend judgments against frivolous appeals,” the court said. It noted that an appellate brief must explain why the appeals court should arrive at a different conclusion than the district court. But rather than doing so, the debtors recycled “meritless arguments,” the court explained.
The Third Circuit illustrated how it was apparent the text of the debtors’ brief was written for the district court. For example, the brief never explained how the lower court erred. It also used the present tense to describe the status of the case before the lower court. And it noted that the debtors’ brief in opposition to Rule 38 sanctions was nearly identical to their trial court brief opposing Rule 11 sanctions. As emphasis, the court appended a “redline” comparison of the debtors’ district court and appellate briefs to show the overlap.
The Third Circuit noted that it often errs on the side of leniency because “even the best lawyers make mistakes from time to time.” But it held that “the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.”
The Third Circuit declined to order the debtors themselves to pay Rule 38 damages, reasoning it is the attorney’s duty to determine whether an appeal is meritorious. Accordingly, the court ordered the debtors’ counsel to pay the creditors’ damages arising from their defense of the appeal.
Decision Highlights Appellate Standards
Litigation Section leaders note that Conboy emphasizes appellate briefing principles. The recycled Conboy brief failed to meet applicable standards not just because it contained copied language, but because it did not respond to the trial court’s decision and advanced frivolous arguments. For example, if an appeal is based on a factual finding, “you need to make a showing of clear error,” says John H. Barkett, Miami, FL, co-chair of the Section’s Ethics & Professionalism Committee. And if it is based on a legal issue, “you need to explain why the district court was wrong or why there should be a change in the law,” neither of which the Conboy debtors did.
Section Leaders explain that Conboy does not mean lawyers may not reuse work from trial briefs in their appellate papers. For instance, once the law in an area is settled, “the courts and parties know what the relevant standards are” and “cutting and pasting could be acceptable on appeal,” states Judge Nancy F. Atlas, Houston, TX, co-chair of the Section’s Access to Justice Committee. Certain long-standing search and seizure doctrines are examples she suggests where “boilerplate” may be acceptable.
Additionally, “nothing in Conboy says that you can’t re-use research,” says Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Professional Liability Litigation Committee.
In fact, re-used language may make appeals more affordable for some litigants. “To a degree,” decisions like Conboy may “hurt clients who are not well off,” observes Leboff.