Bo Donegan
Colorado Defense Lawyers Association
303-263-6466
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Refund and cancellation policy: A registrant for a CDLA event will be entitled to receive a refund in the amount of 50% of the registration fee if the request is received more than 14 days prior to the scheduled date of the event. Thereafter, no refunds will be provided, but the registrant may substitute another person to participate in the event.
I. Overview
A. General Reading: Kevin DuBose, Standards for Appellate Conduct Adopted in Texas, 2 J. App. Prac. & Process 191 (2000); Catherine Stone, Appellate Standards of Conduct as Adopted in Texas, 37 St. Mary’s L.J. 1097 (2006).
B. (Most) Pertinent Colorado Rules of Professional Conduct
1.1 - Competence
1.7 - Conflict of Interest: Current Clients
3.1 - Meritorious Claims and Contentions
3.3(a) - Candor Toward the Tribunal
4.4 - Respect for Rights of Third Persons
8.2 - Judicial and Legal Officials
8.4 - Misconduct
II. Competence
A. CRPC: 1.1. “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
B. Anybody can do an appeal, right?
C. “Appellate advocacy is specialized work. It draws upon talents and skills which are far different from those utilized in other facets of practicing law.” Ruggero Aldissert, Winning on Appeal: Better Briefs and Oral Argument § 1.1 at 3 (2d ed. 2003).
D. See, e.g., Carol M. Blast & Susan W. Harrell, Ethical Obligations: Performing Adequate Legal Research and Legal Writing, 29 Nova. L. Rev. 49 (2004)
III. Conflict Of Interest
A. Positional conflicts? CRPC 1.7 cmt.24:
“Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. . . . If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.”
IV. Meritorious Claims and Contentions.
A. Two distinct types of frivolous appeals: (1) frivolous as filed; and (2) frivolous as argued. See, e.g., Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006).
V. Candor to the Court
A. CRPC 3.3(a) has two parts: (1) Don’t knowingly “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal”; and (2) Don’t knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
B. False statements?
1. See Douglas R. Richmond, Appellate Ethics, Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (2004).
C. Disclosures of Adverse Authority?
1. “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don’t know the thinking that led the appellants’ counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
A. “Our Rules of Professional Conduct prohibit discourteous and uncivil behavior toward any person involved in the legal system, including ad hominem attacks on opposing counsel.” PFW, Inc. v. Residences at Little Nell Dev., LLC, 2012 COA 137, ¶ 45. See also Keim v. Douglas Cty. Sch. Dist., 2015 COA 61, ¶ 32 (“Disagreement-even vehement and vigorous disagreement-with a trial court's rulings and with the arguments of an opposing party and counsel are, of course, part and parcel of any litigation matter. Nonetheless, we expect such disagreements to be civil and respectful. The use of rhetoric like that cited above is unpersuasive and unhelpful.”); State ex rel. Coffman v. Vaden Law Firm LLC, 2015 COA 68, ¶ 26 n.9 (“Sarcasm directed at another party has no legitimate place in an appellate brief.”); Martin v. Essrig, 277 P.3d 857, 860 (Colo. App. 2011) (“Such rhetoric hinders the court in deciding the merits of the appeal; we must waste judicial resources hacking through the verbal brush to uncover the substance (if any) of the arguments. It also disserves parties and debases both the legal profession and the judicial system.”).
B. Steven L. Bernard, The Obligation of Attorneys to be Civil on Appeal, 38 Colo. Law., Jan. 2009, at 49); Stuart C. Markman, Responding to Appellate Lawyers Who Cross the Line, 32 Stetson L. Rev. 425 (2003)
VII. Judicial and Legal Officials
A. “To use a colloquialism, ‘You can think it, but You better not say it.’” Vanderberghe v. Poole, 163 So.2d 51, 52 (Fla. Dist. Ct. App. 1964) (Rawls, J., specially concurring).
B. See generallyAnno., Attorney’s Criticism of Judicial Acts as Ground of Disciplinary Action, 12 A.L.R.3d 1408; Brian G. Liegel, A Higher Bar: The Search for Restrictions on Attorney Criticism of Judges on Blogs, 27 Geo. J. Legal Ethics 689 (2014); Margaret Tarkington, Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 B.C. L. Rev. 363 (2010); Steven Wistoky, Incivility and Unprofessionalism on Appeal: Impugning the Integrity of Judges, 7 J. App. Prac. & Process 303 (2006); Douglas R. Richmond, Appellate Ethics, Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (2004).
C. In re Green, 11 P.3d 1078, 1083-87 (Colo. 2000)(discussing First Amendment limits on disciplining an attorney for criticizing a judge); Martin v. Essrig, 277 P.3d 857, 861 n.5 (Colo. App. 2011) (“Tenant’s opening and reply briefs also contain statements which, viewed in context, could be regarded as attacking (without any articulated foundation) the district court's integrity. We caution litigants that such attacks are inappropriate.”).
VIII. Misconduct
It is professional misconduct for a lawyer to:
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