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 and other confidential information).
In Cicio v. City of New York, 98 N.Y.2d 38, 39-40 (2d Dept. 1983), the City's brief did not cite several directly controlling adverse cases that the City was involved in and had lost. The Appellate Division found this "most disturbing and clearly inexcusable" and stated that "[h]ad even a modicum of thought and research been given to this case, it would have been self-evident to the city that its position was untenable and this court and the taxpayers would have been spared the costs of a frivolous appeal." The "function of an appellate brief is to assist, not mislead, the court" and "[c]ounsel have an affirmative obligation to advise the court of adverse authorities, though they are free to urge their reconsideration." 98 N.Y.2d at 40.
As an advocate you are certainly free to shape your presentation of the facts and discussions of the applicable legal authorities so they present your client's position in its best light. It is essential, however, that your statement be fair and accurate and supported by evidence in the record or fair inferences to be drawn therefrom, and that the authorities you rely on actually stand for the proposition for which they are cited and have not been overruled or modified in any material respect.
If you are going to cite to a passage in a dissenting opinion, be sure to note that fact in your citation of the case. People v. Fudge, 199 A.D.3d 16, 2021 WL 3782695 (4th Dept. 2021) ("worst of all, defendant failed to inform us that the language he quoted on page 11 of his brief came from the dissent in Darby, rather than from its majority").
Appellant's counsel in People v. Fudge, supra, was severely admonished by the court for a number of other serious ethical transgressions during his appeal. Although the opinion does not say what, if any monetary sanction was imposed (perhaps none because counsel was not in private practice), the court's harsh criticism and blemish on one's professional record and reputation are severe punishment and serve as a warning to others.
In Fudge, the defendant was convicted of criminal possession of a controlled substance, street-level PCP. The Appellate Division affirmed the conviction finding probable cause to search defendant's car based on the olfactory detection of street-level PCP by a trained and experienced police officer. In its lengthy opinion, the Fourth Department criticized appellant's counsel for numerous, flagrant ethical transgressions.
Appellant "first argued that probable cause may never arise solely from a trained officer's detection of the smell of street-level PCP" and made the "astoundingly inaccurate claim that "[t]his is a case of first impression" and "none of the Appellate Divisions...has ever passed upon the question of whether the smell of PCP may, standing alone, constitute probable cause to search." 2021 WL 3782695 at *2. The Appellate Division called this "an unacceptable dereliction of counsel's duty of candor to our Court for the First Department has done precisely that in two separate cases (Darby and Sanchez)." Id. at *3. "Instead of acknowledging the weight of the unfavorable precedent, defendant's brief ignores Sanchez's holding altogether, and it mounts a disingenuous and unconvincing campaign to distinguish Darby," relying on language that came from the dissent in Darby, rather than from its majority, without disclosing that important fact. Id. at **3-4.
Appellant's counsel also relied on the readily distinguishable "so-called 'ether cases' to support his view that a trained officer's detection of the smell of PCP cannot, by itself, supply probable cause to search a vehicle." Id. at **11-12. But, as a little research would have disclosed, courts in other states had rejected appellant's argument. "Notably, Maryland's highest court in Bailey [v. State, 412 Md. 349, 987 A.2d 72 (2010)] recognized the key difference between Darby and the ether cases" where probable cause was absent "because the officer merely smelled a lawful substance that could be associated with drug-making, whereas probable cause was present in Darby and its ilk because the officer smelled the adulterated contraband itself. Unfortunately, defendant's brief failed to disclose the fact that Bailey discussed and distinguished Darby." Id. at *13.
In his attempt to distinguish and "escape the persuasive weight of Darby," appellant's counsel relied on "an assortment of extra-record internet research that purportedly demonstrates that raw PCP has no real identifiable scent." Id. at *14. The court rejected such research as valueless, stating, "[a]s a threshold matter, it is improper for defendant to make arguments based on sources that are dehors the record, were not presented below, and are not even conceivably subject to judicial notice." Id. at *14.
Appellant's brief also "directly, repeatedly, and unnecessarily accuses [Officer] Dorchester of serious crimes without evidentiary support. Counsel's 'baseless assertions are shockingly irresponsible' and such conduct 'will not be tolerated.'" Id. at *26 (citations omitted).
Even if one's sense of ethics is lacking, knowledge that departures from ethical considerations on appeal will almost always be counter-productive should be enough to dissuade one from thinking about employing them. The threat of sanctions or disciplinary proceedings should not be necessary, but they are in the court's arsenal to be used against flagrant transgressors; and the publicized stain on one's professional reputation is far greater punishment than the available monetary sanction.
Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.