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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