The Ethical Duty of Competence on Appeal

Of course, all lawyers claim to be competent. And, in fact, most are. However, sometimes lawyers find themselves in uncharted territory, trying to do something with which they are not completely familiar or comfortable. Most of the time, it all works out. However, the Minnesota Supreme Court recently disciplined a lawyer for failing to provide competent appellate representation when he appealed from non-appealable orders and failed to file an appeal after entry of final judgment. In re Gilmore, 871 N.W.2d 212, 212 (Minn. 2015). We write often in this column about the traps and pitfalls of appellate practice, and this case stands as a stark reminder that sometimes things aren’t as easy as they may seem.

Competence is not optional

Some things bear repeating. We recently noted in this column a series of cases where lawyers had not complied with a 2015 civil appellate rule that eliminated the appendix in lieu of a shortened "addendum." Eric J. Magnuson & Lisa L. Beane, "Briefly: Appendix-itis and Other Potentially Fatal Appellate Diseases," Minn. Lawyer (Nov. 20, 2015). The results of not following the new rule were mixed — some lawyers got clemency, and some did not.

In a different column, we wrote about how the court of appeals had dismissed an appeal because counsel improperly served the notice of appeal by facsimile, but the Supreme Court reversed that ruling '"in the interests of justice.'" See Eric J. Magnuson & Matthew J.M. Pelikan, "Briefly: In the Interest of Justice," Minn. Lawyer (Feb. 16, 2015) (quoting Hunter v. Anchorbank, N.A., No. A14-1599 (Minn. Jan. 20, 2015)). In other words, even when the lawyer makes a mistake, it sometimes is not fatal to the client’s case. However, there are consequences that go beyond the case, including consequences to the lawyer’s professional reputation. In Gilmore it was the lawyer who suffered in addition to the client.

Appellate practice is technical. So an attorney putting herself in the appellate game must know and play by the rules. See "Briefly: Appendix-itis" ("[T]he surest way to avoid succumbing to … the host of potentially fatal appellate diseases, is to simply follow the rules."); "Briefly: Interest of Justice" ("[E]very lawyer handling an appeal knows that appellate rules have to be followed to the letter, or really bad things can happen."). But even that is not always enough, as many preconditions to appellate review are not immediately apparent from a casual reading of the Rules of Civil Appellate Procedure.

"When an appeal is filed, a lawyer begins, in a sense, a new ball game with new rules and a new audience." Kay Nord Hunt & Eric J. Magnuson, "Ethical Issues on Appeal," 19 Wm. Mitchell L. Rev. 659, 660 (1993). One has to be competent to play the game. See Minn. R. Prof. Conduct 1.1 (lawyer shall provide competent representation to client, which requires legal knowledge, skill, thoroughness and preparation that is reasonably necessary).

A variety of rules

Consider that more than one set of appellate procedure rules might apply. For example, appellate procedure rules for criminal cases are located in the Rules of Criminal Procedure at Rules 28 (appeals to the court of appeals) and 29 (appeals to the Supreme Court). Yes, those apply — but not exclusively. "To the extent applicable, the Minnesota Rules of Civil Appellate Procedure govern appellate procedure unless these rules direct otherwise." Minn. R. Crim. P. 28.01, subd. 2; Minn. R. Crim. P. 29.01, subd. 2 (same).

It takes a lot of back-and-forth between those two sets of rules to know which of the rules of civil appellate procedure apply to a criminal appeal. And if one is a trial court criminal law practitioner with few or no appeals under one’s belt, it could be difficult to surmise what types of civil appellate rules even exist much less discern which ones might be applicable above and beyond the criminal appellate procedure rules.

Appellate experience matters

Counsel experienced in appellate litigation can bring a lot to the table. Besides familiarity with the procedural requirements, appellate lawyers usually have a better understanding of substantive appellate law, such as the use of and importance of the standard of review or how to establish harmless error. As one court noted, the "appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product." In re Marriage of Shaban, 105 Cal. Rptr. 2d 863, 871 (Cal. Ct. App. 2001).

Experienced appellate counsel also are more likely to be aware the trends and patterns emerging in appellate decisions. Katherine Mayer Mangan & Colleen Carlton Smith, "Appellate Attorneys: Why Hire Them and How to Choose Them," San Diego Daily Transcript (Dec. 30, 2009). They will know what issues are on the judges’ minds; they will know how a case fits into the patterns; and this knowledge enables appellate counsel to better select winning issues and cogently present those issues. Attorneys who do not regularly follow the appellate courts may have more difficulty doing so. Id.

 You don’t need to be an appellate lawyer, but appellate colleagues can help

One does not need to be experienced in appeals in order to handle an appeal competently. One does need to recognize they are different, however. The technical nature of appellate procedure means that a competent lawyer on an appeal needs to be detail-oriented and make the time for the preparation that is reasonably necessary for that representation. See Minn. R. Prof. Conduct 1.1. In other words — take the time to carefully review the rules and double-check the work product.

A good trial lawyer can certainly handle an appeal, and shouldn’t hesitate to do so. But regardless of the appellate attorney’s experience level, there are always cases where it is useful or even necessary to seek out additional resources. We are all in the practice of law together, and the goal of the bar should be for all parties to present legitimate disputes to the courts efficiently, concisely and properly.

In this column last month we wrote about the importance of professionalism and appellate practice, and in our view, that extends to helping fellow members of the bar with informal consultations on issues of appellate practice and procedure. Minnesota has a developing appellate bar, and its members are, in my experience, more than willing to share their experience and insight with those who are new to the appellate ballgame. A brief chat seeking help in identifying issues or resources can save time, and avoid future problems. Of course, the lawyer taking the appeal is ultimately responsible for handling the appeal competently, but part of that undertaking might be simply talking to someone who has been there before. And the experienced appellate lawyer benefits the bar and the courts by sharing a little wisdom. Members of the 8th Circuit Bar Association and the MSBA Appellate Practice Section are likely to be a good starting point. See sidebar for other resources.

Appellate resources

• Eric J. Magnuson, David F. Herr & Sam Hanson, 3 Minnesota Practice: Appellate Rules Annotated (2015 ed.)
• Eighth Circuit Appellate Practice Manual (Minnesota CLE, 7th ed., 2016)
• The Minnesota Court of Appeals Standards of Review (updated August 2014),
  http://www.mncourts.gov/mncourtsgov/media/Appellate/Court%20of%20Appeals/Stand
  ards_of_Review_2014.pdf
• Members of the MSBA have access to appellate practicelaw materials through the MSBA website that include forms, articles, section CLE materials, court rules and more.
• There is also a bibliography of appellate resources available from the American Academy of Appellate Lawyers at http://www.appellateacademy.org/publications/bibliography.pdf.

Reprinted with permission of Minnesota Lawyer ©2015