In recent years, the Jacksonville legal community has begun to accept and, in many
circles, embrace the concept of an appellate specialist.
That is, in particularly important cases, many trial lawyers have discovered the tremendous value of having an appellate specialist handle the appellate aspects and proceedings. This concept raises several professionalism issues worth considering.
• Competency — The very first rule of professionalism, Rule 4-1.1, provides that:
“[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Professor Tom Elligett has reported in a Florida Bar Journal article that Chief Justice Harry Lee Anstead has questioned whether the competency provisions of the Florida Rules of Professional Conduct might require trial lawyers in significant cases to associate appellate counsel.
• Engagement Agreement — Appellate lawyers often have little or no direct contact with the client and, instead, work with the trial lawyer who (hopefully) has established a relationship of trust and confidence with the client. Appellate specialists tend to have the utmost respect for this relationship and take pains to avoid interfering with it. Nonetheless, in almost all situations, it is prudent for all three parties – client, trial lawyer, and appellate lawyer – to have a written engagement agreement clarifying the scope of the appellate lawyer’s duties and the fee agreement. This is often accomplished by a letter to the client sent in care of the trial lawyer. All three parties should sign the letter.
• Conflicts in Legal Positions — In addition to the usual conflict of interest issues that arise in any litigation practice, appellate lawyers must also be aware of issue conflicts. The commentary to Rule 4-1.7 addresses situations in which a lawyer may not argue for one rule of law in one case and a conflicting rule in another: “[I]t is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.” Thus, in evaluating a new matter, the appellate lawyer need consider not only conflict between clients, but also conflicts between legal positions.
• Disclosing Contrary Authority — Another rule that has particular importance in the appellate arena is Rule 4-3.3(a)(3), which provides that a lawyer shall not “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.” This principle is not only important in terms of complying with the rules of professional conduct, but is also crucial to maintaining a strong reputation among appellate judges, which is one of the most important assets of a good appellate lawyer.
These are but a few of the professionalism issues that have unique application to appellate practice. As with substantive and procedural issues inherent in litigating an appeal, a board-certified appellate specialist typically will be best equipped to resolve these issues.
If you would like to write an article about an ethical or professionalism experience that others in the Bar may learn from, please contact Caroline Emery, Chair of the Professionalism Column, at [email protected].