Appellate Jurisdiction and the Duty of Candor to the Court– All in a Four-Page Opinion

K.L.G. v. D.M.., 2011 WL 2321404 (App. Div. June 29, 2011).  Rule 2:9-1(a) provides that once a notice of appeal is filed, “supervision and control” of the case pass to the Appellate Division.  As this per curiam opinion states, at that point, “the trial court’s jurisdiction is limited to enforcement of the order subject to review.”  The trial court cannot take any other action unless the Appellate Division issues an order directing that action be taken.

In this case, the parties were both interested in terminating a restraining order that the trial court had entered.  That order was “the subject of the then-pending appeal.”  The parties jointly procured an order from the trial court that vacated that restraining order while the appeal was pending.  They did not, however, advise the Appellate Division that they were doing that or seek a limited remand for the purpose of doing that.  The Appellate Division proceeded to decide the case.  Once the panel learned what had happened, the judges issued this as a supplemental opinion.

The panel, Judges Grall, Miniman and LeWinn, found what had happened to be improper for multiple reasons.  First, the parties had violated Rule 2:9-1(a) by inducing the trial court to issue an order when it lacked jurisdiction to do so.  Second, counsel had breached their duty of candor to the court, under Rule of Professional Conduct 3.3, by failing to inform the Appellate Division about what had occurred.

The panel stated that it was issuing this opinion “to point out the lawyers’ shared failure to comply with Rule 2:9-1 in lieu of imposing sanctions,” in order to “better serve our goal, which is to avoid repetition of such conduct.”  Let this be a lesson.