Dallas Bar Association

To Appeal or Not To Appeal: That Is the Ethical Question

by Robert Bogdanowicz

What is a Texas lawyer to do when directed to file an appeal he or she knows is frivolous? Are there any rules which provide guidance? By the end of this article, you will be armed with enough knowledge to answer the first two with ease, making you a surefire hit at dinner parties from El Paso to Texarkana.

The Preamble to the Texas Professional Rules of Conduct reiterates one of our “golden rules:” “In all professional functions, a lawyer should zealously pursue client’s interest within the bounds of the law.” Later, Rule 3.01 espouses another “golden rule” but one poised on the opposite end of the spectrum: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.”

Any Texas litigator reading this is likely familiar with Texas Rule of Civil Procedure 11, which largely echoes the sentiment of Disciplinary Rule 3.01:

The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purposes of harassment.

While the rules seem black and white, we all know reality is composed of 50 shades of grey. Not surprisingly, the procedure for handling such a dilemma depends on the type of case and whether or not your representation is court appointed.

Attorneyswho practice criminal law may be familiar with the Anders brief. See Anders v. California, 386 U.S. 738 (1967). Charlie Anders was convicted of felony possession of marijuana and requested appointment of appellate counsel.  Anders’ request was granted, but after reviewing his case, Anders’ appointed counsel determined any appeal would be frivolous.  The appointed counsel notified the court that he would not file an appeal because it would lack merit and withdrew. Ultimately, Anders filed an unsuccessful appeal himself.

Years later, Anders asked that his case be re-opened because he was denied his right to counsel. The intermediate appellate court and California’s Supreme Court ruled against him. Undeterred, Anders appealed to the U.S. Supreme Court, which granted a writ of certiorari. The Supreme Court held Anders was denied his Sixth Amendment right to counsel and outlined a procedure for similarly appointed counsel: (1) Inform the court of the conclusion that an appeal is frivolous; (2) file a brief demonstrating a thorough search of the record for any arguable claims which might support the client’s appeal; and (3) file a motion to withdraw.

Texasfollows the Anders guidelines for similar criminal appeals as well as certain juvenile appeals. Additionally, courts across Texas have found it appropriate for proceedings involving the termination of parental rights, as the Family Code requires courts to appoint appellate counsel to indigent parents when the Department of  Family and Protective Services has terminated a parent’s rights to his or her child. See Tex. Fam. Code § 263.405(e). Though the courts apply the same logic regarding appointed appellate counsel in criminal matters, several have reached slightly different conclusions—Houston, Fort Worth and Waco holding Anders briefing mandatory, with others, such as Corpus Christi and Tyler, holding it is permissible, but not required.

So what does this mean for lawyers evaluating appeals in a personal injury case or a breach of contract dispute? These lawyers are not court appointed, but retained by private clients pursuant to written agreements. As such, Anders briefing is unnecessary, but it serves as a helpful reminder on how to properly terminate the attorney-client relationship. Stuck in an unfortunate situation where a private client demands an appeal, regardless of frivolity? Think Anders.

It is recommended that you put your advice to the client in writing.  If the client refuses to follow advice and insists on filing a frivolous appeal, an effective attorney-client relationship no longer exists. Terminate the relationship in writing, citing not only the appellate impasse, but also the relevant provisions in your engagement agreement.  If there are any upcoming appellate deadlines, be sure to include them too. After that is done, thank the stars you are not a court appointed attorney tasked with preparing an Anders brief!


RobertBogdanowicz is a trial lawyer at Deans & Lyons, LLP. He can be reached at rob@deanslyons.com.

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