Published in Forum 8, Eighth Judicial Circuit Bar Association, Inc. Newsletter, Vol. 72, No. 5, January of 2013
How many times have we all heard our adversary yell with righteous indignation: “Judge, we will appeal!” or “Judge, we’ll let the appellate court comment on that”? All too often, certain lawyers recite this threatening mantra after receiving an adverse ruling and convince their client to appeal, not because the ruling is legally or factually wrong, but to feed into the client’s unhealthy need to continue the battle; to allow the lawyer to continue billing; and/or maybe to help the lawyer avoid a malpractice or ineffective assistance of counsel claim. Whatever the reason, the threats are made, the appeal filed, and the litigation continues. I am not suggesting that there aren’t meritorious appeals. There is an appellate court for a reason and sometimes an appeal must be filed to correct a ruling. However, as I’m sure we have all experienced, some appeals are simply pursued for all the wrong reasons and it is those appeals which can end up becoming costly to the appellate lawyer and client as well as to the administration of justice.
Unfortunately, Florida courts have actually had to comment on this precise problem many times. Certainly, a lawyer has a duty to zealously represent their client’s interests. However, such a duty does not justify the filing of a frivolous appeal. The Florida Supreme Court has cautioned that the Florida Statutes[1], Florida Bar’s rules of professional conduct[2], as well as the oath of admission[3], all warn that attorneys must be governed by considerations other than mere zealous advocacy.[4] The Court openly noted that: “[t]o many members of the Bar practice with complete ignorance of or disdain for the basic principle that a lawyer's duty to his calling and to the administration of justice far outweighs - and must outweigh - even his obligation to his client, and, surely what we suspect really motivates many such inappropriate actions, his interest in his personal aggrandizement.”[5]
When an argument is not supported by the application of the governing law, or a good faith argument for an extension, modification, or reversal of existing law, a Florida lawyer has both an ethical and a statutory duty not to file the appeal.[6] Filing a frivolous appeal will justify the imposition of sanctions. So how will an appellate court determine that an appeal is frivolous? This circuit’s own district court of appeal has expressly addressed this issue and found that, in general, “[a] frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it.”[7] More specifically, guidelines have been established to determine if an action is frivolous. For instance:
(1) is the case wholly without legal merit and unable to be supported by a good faith argument for an extension, modification or reversal of existing law?
(2) is the case contradicted by overwhelming evidence?
(3) has the case been undertaken to delay or prolong the litigation, or to harass or maliciously injure another? or
(4) does the case assert material factual statements that are false?[8]
Relying on the above guidelines to sanction a client and lawyer for raising frivolous arguments on appeal, the First District Court of Appeal has stated:
We believe that applying sanctions in cases such as this will protect this court's ability to serve litigants with meritorious cases, will encourage lawyers to give thoughtful consideration as to whether there are non-frivolous grounds for an appeal before filing, and will discourage lawyers from raising meritless appellate arguments on the chance that they will “stick.” The filing of an appeal should never be a conditioned reflex. About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.[9] (Emphasis added).
All too often certain lawyers want to fight to the death and put on a good show for their client regardless of whether their argument has merit or not. However, filing a frivolous claim or appeal can be costly to the lawyer and their client as well as to the administration of justice. As the First District Court of Appeal has expressly stated, Section 57.105 mandates the award of fees for bringing or failing to dismiss meritless claims or defenses.[10] It is not discretionary. Further, a lawyer who files a frivolous appeal violates both a duty to serve the client's interests as well as a duty to the judicial system.[11] Filing an appeal should not be automatic. There is an ethical and statutory duty to counsel clients appropriately about filing frivolous appeals that only serve to harass others, prolong litigation and/or incur unnecessary fees and expenses. A lawyer’s duty to his calling and to the administration of justice far outweighs - and must outweigh - even his obligation to his client.[12] Sometimes the best advice we can and should give our clients is to simply stop – stop the unnecessary battling.
[1] Fla. Stat. § 57.105 (allowing a court to sanction the losing party and the losing party's attorney if the court finds the losing party or the losing party's attorney knew or should have known that a claim or defense was not supported by the application of then-existing law).
[2] Rules Regulating The Florida Bar 4-3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.” See also, Rules Regulating The Florida Bar 4-3.3(a)(1) (“A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”).
[3] “I do solemnly swear: …I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land; I will employ, for the purpose of maintaining the causes confided in me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law…”.
[4] Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005), quoting, Lingle v. Dion, 776 So. 2d 1073, 1078 (Fla. 4th DCA 2001).
[5] Boca Burger, Inc., 912 So. 2d at 572, citing, Rapid Credit Corp. v. Sunset Park Ctr., Ltd., 566 So. 2d 810, 812 n.1 (Schwartz, C.J., specially concurring).
[6] Rules Regulating The Florida Bar 4-3.1; Fla. Stat. § 57.105; de Vaux v. Westwood Baptist Church, 953 So. 2d 677, 683 (Fla. 1st Dist. 2007).
[7] de Vaux, 953 So. 2d at 683, quoting Restatement (Third) of Law Governing Lawyers § 110, cmt. d. (2000); see also, Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482, 491 (Fla. 3d DCA 2000) (a “frivolous” appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.”).
[8] de Vaux, 953 So. 2d at 683, citing Wendy’s of N.E. Florida, Inc. v. Vandergriff, 865 So. 2d 520, 524 (Fla. 1st DCA 2003).
[9] de Vaux, 953 So. 2d at 685, citing, Hill v. Norfolk & Western Ry. Co., 814 F. 2d 1192, 1202 (7th Cir. 1987).
[10] Fla. Stat. § 57.105 (“the court shall award a reasonable attorney’s fee…”); see also, de Vaux, 953 So. 2d at 685, citing, Smith v. Gore, 933 So. 2d 567, 568 (Fla. 1st DCA 2006) and Albritton v. Ferrera, 913 So. 2d 5, 8-9 (Fla. 1st DCA 2005); Martin County Conservation Alliance v. Martin County, 73 So. 3d 856, 859 (Fla. 1st DCA 2011).
[11] de Vaux, 953 So. 2d at 685, citing, Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA 2003).
[12] Boca Burger, Inc., 912 So. 2d at 572, citing, Rapid Credit Corp. v. Sunset Park Ctr., Ltd., 566 So. 2d 810, 812 n.1 (Schwartz, C.J., specially concurring).
