In pursuing an appeal on behalf of a client, a California lawyer must meet the requirements of the California Rules of Professional Conduct (“CRPC”) and the State Bar Act. The following summarizes some of those requirements and recent developments.
Fundamentally, a lawyer must fulfill duties of competence, diligence, and communication. CRPC 1.1 provides that a lawyer “shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence,” which is defined as “the (i) learning and skills, and (ii) mental, emotional and physical ability reasonably necessary for the performance of such service.” CRPC 1.3(a) states that an attorney “shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.” Under CRPC 1.4(a)(3), the lawyer has a duty to keep the client reasonably informed about significant developments related to the representation. See Bus. & Prof. Code, § 6068(m).
Applying these rules in the appellate context, the lawyer must be sufficiently familiar with the substantive law and the record to advocate competently on the merits, and the lawyer must take adequate steps to meet the procedural requirements for appeals. Sources to consider include the Code of Civil Procedure, the California Rules of Court, and the local rules for the appellate district, which may be available on the court’s website. Potential issues include, without limitation, the proper and timely filing of the notice of appeal, the designation of the appellate record, taking steps to assure the delivery of the record (clerk’s transcript and reporter’s transcript) and exhibits to the appellate court, reviewing the record and seeking augmentation if needed, the timely filing of briefs, and taking care not to waive arguments by, for example, failing to supply required citations to the record and legal authority in the briefs. As the appeal progresses, the lawyer must keep the client reasonably informed.
The lawyer must also fulfill the duty of candor to the “tribunal,” which includes an appellate court (CRPC 1.0.1). CRPC 3.3(a) provides that a lawyer shall not “knowingly make a false statement of fact or law to a tribunal,” “fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer,” or “offer evidence that the lawyer knows to be false.” The lawyer must also disclose “legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel” and must not “knowingly misquote to a tribunal the language of a book, statute, decision or other authority.” CRPC 3.3(a); see Bus. & Prof. Code, § 6068(d). Relatedly, the lawyer must not pursue a frivolous appeal. See CRPC 3.1(a); Bus. & Prof. Code, § 6068(c); Code Civ. Proc. § 907; Cal. Rules of Court, rule 8.276.
Recent cases and guidance from the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) underscore these obligations. In People v. Ashford University, LLC (2024) 100 Cal.App.5th 485, the California Court of Appeal discussed at length numerous violations of the rules for appellate briefs, including the absence of record citations. In Grant v. City of Long Beach (9th Cir. 2024) 96 F.4th 1255, the Ninth Circuit Court of Appeals dismissed an appeal because the opening brief misstated the facts and holdings of judicial decisions and cited cases that did not exist – a danger when relying too heavily on artificial intelligence (“AI”) to craft a brief. In light of the rising use of AI, COPRAC issued its “Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law,” which emphasizes that lawyers must understand the risks and benefits of AI, review generative AI outputs for accuracy, and comply with any requirements to disclose to the court the use of AI in preparing briefs. See CRPC 1.1, Comment [1] (competence includes keeping “abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology”). As the times and technology change, lawyers must remain mindful of the ethical rules and how they might apply, including in the context of appeals.
Carl W. Chamberlin is an attorney, an adjunct professor at UCLawSF, and the immediate past Chair of the BASF Legal Ethics Committee. The views expressed in this article are his own.