PROFESSIONALISM FOR APPELLATE ATTORNEYS
Professionalism & Ethics Committee ���������������������������������������������������������������������������������������
Appellate attorneys are held to a higher standard of professionalism.
Appellate attorneys are held to a higher standard of professionalism. In Boca Burger, Inc. v. Forum, 912 So. 2d 561, 569( Fla. 2005), the Florida Supreme Court explained that appellate counsel has an independent ethical obligation that“ will sometimes require appellate counsel to concede error” even though the“ the trial counsel obtained a favorable result.” The Court further stated that regardless of a trial counsel’ s conduct or representations, appellate counsel“ has an independent ethical obligation to present both the facts and the applicable law accurately and forthrightly.” Id. So it is possible for attorneys representing appellees to be sanctioned for defending a trial court’ s order.
Also, appellate attorneys are not excused from responding to a show cause order to show why an initial brief has not been filed by simply voluntarily dismissing an appeal. Nocari Inv., LLC v. Wells Fargo Bank, N. A., 206 So. 3d 761( Fla. 3d DCA 2016). In Nocari Investment, the Third District Court of Appeal sanctioned an appellate attorney who acknowledged he should have responded to a show
cause order, but protested that his failure to do so was an oversight. The court held that counsel’ s explanation was inadequate. Id. at 762. Notably, the appellate court did not address or mention the Florida Supreme Court’ s decision in Kozel v. Ostendorf, 629 So. 2d 817( Fla. 1993), which requires a trial court to consider“ whether the attorney’ s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience.” As a sanction, the Third DCA referred the attorney to the Eleventh Circuit Court’ s Professionalism Panel.
In Beckles v. Brit, 176 So. 3d 387( Fla. 3d DCA 2015), the Third DCA imposed the same sanction for an attorney’ s failure to submit an initial brief even though his client was left without resources to prosecute the appeal.
As other examples of this higher standard, appellate courts have sanctioned appellate attorneys for not informing the court of two other pending proceedings challenging the same order, O’ Connor v. Indian River County Fire Rescue, 197 So. 3d 156, 159( Fla. 1st DCA 2016); for appealing a temporary injunction entered at a hearing the appellate attorney had scheduled but failed to appear at, Maestrales v. Flaherty, 183 So. 3d 1036( Fla. 5th DCA 2015); for failing to timely respond to show cause orders and not having“ a reliable address,” Belkova v. Russo, 181 So. 3d 1241, 1243( Fla. 5th DCA 2015); for raising issues which had previously been decided in an earlier appeal, In re A. T. H., 180 So. 3d 1212, 1215-16( Fla. 1st DCA 2015); for arguing issues that were not preserved for appeal, contrary to law of the case, and not reviewable due to lack of a hearing transcript of hearing, Cosner v. Park, 178 So. 3d 964, 964-65( Fla. 4th DCA 2015); for cavalier responses to show cause orders and filing numerous motions for extensions of time, Cooper v. State, 174 So. 3d 554, 556-57( Fla. 2d DCA 2015); and for filing a baseless motion for extension of lis pendens, Massa v. McNutt, 172 So. 3d 516, 516( Fla. 5th DCA 2015).
Author: Randall Reder- Randall O. Reder, PA
Learn more about the 13th Circuit Professionalism Panel at hillsbar. com.
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