Leading the Government?
Eleventh Amendment Black Letter Law

How Appellate Courts Admonish Trial Courts, and Why You Should Listen

Everyone eventually encounters an judge out to sink the client's case.  Ultimately the judge treats the lawyer or client unfairly, and the attorney appeals. 

Sadly, the appellate courts almost never criticize trial courts.  Unless the conduct is egregious and clearly demonstrable - after every inference has been drawn in favor of the trial court - the appellate court let's the misconduct slide.  But in a recent decision, the Eighth Circuit  admonished the trial court, and in doing so, gave all of us a lesson in appellate advocacy.  Joseph H. Low v. John Fahle

The facts of Low are simple.  A criminal defendant in Missouri wanted to retain Joey Low, a top trial lawyer who regularly escorts drug defendants from court as free men.  Joey talked to the potential client. The client's lawyer got pissed, complained, and the trial court gave Joey some home cooking --The trial court sanctioned California attorney Joey Low for violating a Missouri rule of professional conduct.  However, even a first year law student could read the rule and determine that it did not prohibit Low's conduct.

But the panel did not characterize the case as I did.  Indeed, such a characterization contained in a legal brief would be scandalous. Instead, the panel showed us that the trial court misread an unambiguous law.  This type of restraint is something appellate counsel should adopt.  Show the panel why the trial court was out of line, instead of calling the trial court names.

The language from the court is a reminder to lawyers writing appellate briefs.  Do not say, "The judge was unfair," or "The judge ignored the law."  Rather, methodically show why the judge did so.  After all, if appellate courts - which have the power to admonish trial courts - show this restraint, then so too should you.

Let's see how the panel handled the trial court's clearly erroneous interpretation of a clearly-crafted rule.  Judge Bye wrote:

The Eastern District of Missouri follows the Missouri Rules of Professional Conduct. Missouri Rule 4-4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The district court determined Low violated Missouri Rule 4-4.2 after finding Low communicated with Gonzalez-Lopez about his case without Fahle's consent. In reaching this conclusion, the district court interpreted Rule 4-4.2 to prohibit an attorney from communicating with a represented client without first obtaining permission from the client's existing counsel, even if the attorney is not representing any other party in the matter.
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Rule 4-4.2 consists of one sentence, which begins with the clause, "In representing a client." It is evident from the inclusion of the words "In representing a client" that the remainder of the text of Rule 4-4.2, which prohibits unauthorized communication with represented parties in a matter, is limited to attorneys who are involved in the matter and does not apply to an attorney not so involved. The Rule's limited applicability to attorneys who are involved in the case is also evident from an examination of the purpose of the Rule. Missouri Rule 4-4.2 is "essentially identical" to Rule 4.2 of the ABA Model Rules.  The purpose of Rule 4.2, which can be found in the first comment to Rule 4.2, is to "protect[] a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation." ABA Model Rules of Prof'l Conduct R. 4.2 cmt. 1 (emphasis added). The comments further provide: "Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. . . ."

Furthermore, the district court's interpretation of Rule 4-4.2 would prevent parties in litigation from freely consulting with outside attorneys to obtain additional advice about their cases, hire additional counsel, or even hire different counsel. In the context of criminal prosecutions, the district court's interpretation of Rule 4-4.2 unjustifiably interferes with the criminal defendant's qualified right under the Sixth Amendment to be represented by counsel of the defendant's choosing, as illustrated in the underlying criminal case. The Sixth Amendment right to be represented by counsel of one's choice in a criminal proceeding is discussed at length therein. Our interpretation of Missouri Rule 4-4.2 is also consistent with an advisory opinion issued by the Legal Ethics Counsel of the Missouri Bar. The advisory opinion discusses several scenarios strikingly similar to the events which took place in the present case.
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In sum, we hold Rule 4-4.2 does not prohibit an attorney who is contacted by a party to litigation from communicating with the party about the case without first obtaining permission from the party's existing counsel when the attorney is not involved in the matter. It is undisputed Low was not representing any party in the criminal prosecution when he and Gonzalez-Lopez engaged in discussions about the possibility of Low taking on the representation. We therefore reverse the order imposing sanctions against Low.

Id. at *10-12 (emphasis added).  That's the way to do it.  Don't criticize the trial judges or call him or her names.  Instead, methodically demonstrate why the judge was incorrect.

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