Recent guidance regarding attorneys' professional obligations related to appeals

In Perry v. Kia Motors America, Inc. (2023) 91 Cal.App.5th 1088, the court of appeal ruled that appellant forfeited an issue because appellant's counsel misrepresented the trial court record in the opening brief. The opening brief, which challenged the trial court's failure to give a jury instruction related to allegedly concealed evidence, stated that the trial court found that respondent had concealed evidence despite the trial court having never made such a finding. The court of appeal determined that this misrepresentation supported a finding of issue forfeiture because, as an officer of the court, appellant's counsel owed the court a duty of candor and appellant's counsel "fell well short of that duty." Appellant's counsel's misrepresentation of the record constituted a "serious offense." It ruled that the issue was forfeited because, in misstating the record, appellant's counsel failed to set forth a complete statement of significant facts in the opening brief pursuant to Rule 8.204(a)(2)(C) of the California Rules of Court (CRC.) In analyzing CRC Rule 8.204(a)(2)(C), the court of appeal stated that appellant's counsel cannot merely set forth the facts that are beneficial to appellant in an opening brief - the statement of facts must be evenhanded and free of bias. Overall, the court highlighted the importance of honesty in pursuing an appeal.

In Champlin/GEI Wind Holding, LLC v. Avery (2023) 92 Cal.App.5th 218, the court of appeal found that an appeal was "frivolous," which justified the imposition of sanctions against appellant and his counsel in the amount of $15,000. Appellant challenged a trial court's decision to grant summary judgment despite the fact appellant had failed to file a timely opposition to a motion for summary judgment and, when appellant finally did file the opposition, failed to include any supporting evidence. The court of appeal affirmed the trial court's decision and imposed sanctions against appellant and his attorney because any reasonable attorney would agree that the appeal indisputably had no merit. In filing the appeal, appellant's counsel ignored all of the traditional rules of appeal and the court of appeal "expect[s] counsel to know and follow basic law relating to civil procedure." The court of appeal explicitly stated that it was "publish[ing] the opinion for several reasons, not the least of which is a guidepost to the bar not to file a frivolous appeal."

To ensure compliance with their appeal-specific professional duties, attorneys practicing appellate law should ensure that: (1) they do not misconstrue the trial court record in any way on appeal; and (2) the appeal does not completely lack merit. To accomplish this, counsel should keep in mind that an appellate opening brief's statement of facts is not the appropriate place for overt advocacy and, before filing an appeal, should contemplate what their response would be to assertions that the appeal is completely baseless and warrants an award of sanctions. If counsel cannot preemptively formulate a viable argument as to why the appeal is not wholly unfounded, counsel should seriously consider not proceeding with the appeal.

This article certainly does not address all of the ethical obligations an attorney has when initiating and prosecuting an appeal. Still, it can be used as a starting point for attorneys to minimize the risk of suffering negative consequences, such as issue forfeiture and/or the issuance of sanctions, in connection with an appeal.