Ethical Considerations On Appeal

• Published date: 08 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Duane Morris LLP
• Author: Mr Thomas Newman

Most New York attorneys are familiar with Part '130, Costs and Sanctions, of the Rules of the Chief Administrator which requires that every pleading, written motion and other paper served on another party or filed or submitted to the court be signed by an attorney whose signature certifies that attorney's good faith, informed belief that "the contentions therein are not frivolous." 22 NYCRR '130-1.1(a). The intent of Part 130.1 is "to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics." Kernisan v. Taylor, 171 A.D.2d 869 (2d Dept. 1999).

Regrettably, some attorneys do not understand that their ethical obligations do not come to an end when an appealable order or judgment is entered against their client in the trial court. Part 130 and the discretionary monetary sanctions it authorizes the court to impose-up to $10,000 for any single occurrence of frivolous conduct-also applies to motions and briefs filed and submitted to an appellate court. See Newman, Frivolous Conduct: Ethical Considerations in Appellate Practice, NYSBA Journal, vol. 87/No. 6, p. 39 (July/Aug 2015).

In Bell v. New York Higher Educ. Assistance, 76 N.Y.2d 930 (1990), the court imposed an inexplicably low sanction of $1,000 after appellant's "fifth motion in a chain reflecting a strategy of dilatory, frivolous avoidance of a twenty-year-old student loan debt for two years' law school education."

When Bell next appeared in the Court of Appeals, 11 years later, with another frivolous appeal contesting the, by then, almost 30-year-old unpaid law school loan, the court fixed the sanction at $5,000, still reluctant to impose the $10,000 maximum sanction. Bell v. State of New York, 96 N.Y.2d 811, 812 (2001). Attorneys should not count on other courts taking an equally lenient view of their transgressions.

Part 1200 Rules of Professional Conduct of the Joint Rules of the Appellate Divisions provides in Rule 3.3 Conduct before a tribunal:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; ...

(c) The duties ... apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 (privileged...