The Seven “C’s” of Ethical Appellate Practice

I have posted elsewhere about the “four C’s” for New Jersey Bar applicants before the Supreme Court Committee on Character.  At last night’s meeting of the New Jersey State Bar Association’s Appellate Practice Committee, Charles Centinaro, the Director of the Office of Attorney Ethics, made a presentation about ethics in appellate practice that topped my “four C’s.”  Mr. Centinaro offered the following “seven C’s” (carefully noting the pun on “seven seas”) for ethical appellate practice.

The first C is “competence.”  Rule of Professional Conduct 1.1 is titled “Competence,” but the body of the rule does not use that term.  Instead, it is phrased in the negative, forbidding “gross negligence” or “a pattern of negligence or neglect.”  Lack of experience does not preclude competence, provided that an attorney has done proper research or otherwise equipped himself or herself to handle a matter.  But competence is a fundamental requirement of ethical appellate practice.

The second C is “communication.”  RPC 1.4 addresses this, requiring lawyers to keep clients “reasonably informed” with explanations “reasonably necessary to permit the client to make informed decisions regarding the representation.” Mr. Centinaro noted that failures to communicate are one of the main sources of ethics complaints from clients, complaints that can be avoided by timely communication.

The third C is “confidentiality.”  Mr. Centinaro recognized that confidentiality is not often implicated in appellate work.  Nonetheless, it remains important, as RPC 1.6 recognizes.

The fourth C is “conflict of interest.”  That is a concern that pervades all areas of legal practices, and multiple rules, beginning with RPC 1.7, address it.  Mr. Centinaro observed that it is easy to recognize concurrent conflicts of interest.  But more intricate is consideration of whether representing client A in matter B may prejudice client C in matter D, if counsel is arguing a position that may make bad law for a different client.  He opined that it may be less of an issue if the differing positions are being taken in courts at the same level, or if the cases result in not precedential opinions, since those results would not bind another court.  But if one case is in an appellate court and the other is at the trial level, there may be conflict issues lurking.

The fifth C is “courtesy.”  This covers conduct toward both litigants and the courts.  Multiple rules deal with different facets of courtesy, including RPC 3.2, 3.4, 3.5, and 8.4(d), the last of which is a “catch-all.”  Mr. Centinaro discussed several well-known cases where violations of the duty of courtesy led to sanctions for attorneys, including In re Vincenti, 92 N.J. 591 (1983), a morbidly entertaining, all-time favorite of mine.

The sixth C is “candor.”  That is fundamental (it is also one of my four C’s for the Committee on Character).  That duty covers both affirmative misrepresentations and misleading omissions or silence.  RPC’s 3.3(a), 3.4(b), 4.1, and (again) 8.4(c) address this duty.

The final C is “cooperation.”  That C speaks for itself as, ultimately, do many of the others.

This was a very informative talk.  It would have been even better had it come with CLE credit.  But you can’t always get what you want.  We got what we needed.