Ethical Considerations on Appeal

Most New York attorneys are familiar with Part §130, Costs and Sanctions, of the Rules of the Chief Administrator which requires that every pleading, written motion and other paper served on another party or filed or submitted to the court be signed by an attorney whose signature certifies that attorney’s good faith, informed belief that “the contentions therein are not frivolous.” 22 NYCRR §130-1.1(a). The intent of Part 130.1 is “to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics.” Kernisan v. Taylor, 171 A.D.2d 869 (2d Dept. 1999).

Regrettably, some attorneys do not understand that their ethical obligations do not come to an end when an appealable order or judgment is entered against their client in the trial court. Part 130 and the discretionary monetary sanctions it authorizes the court to impose-up to $10,000 for any single occurrence of frivolous conduct-also applies to motions and briefs filed and submitted to an appellate court.

To read the full text of this article by Duane Morris of counsel Thomas R.  Newman, please visit the firm website.

The Record and Matter Outside It

Thomas Newman A fundamental tenet of appellate practice is that the rights of the litigants are to be determined solely on the basis of materials contained between the covers of the record on appeal. With some rare exceptions discussed below, it is a serious breach of appellate decorum to refer to matters outside the record. Counsel who do so run the risk of being reprimanded by the court during oral argument and in a subsequent published opinion.

References in briefs to material not contained in the record may be stricken on motion made by the opposing party and, if granted, this may blemish the offending counsel’s reputation for integrity and reliability before the panel that will decide the appeal. The court may also deny costs to a prevailing party whose brief contained references to matters outside the record. Topal v. Pace University, 167 A.D.2d 387 (2d Dept. 1990) (“since the appendix to the defendant’s brief contains documents dehors the record, the defendant is denied costs on appeal”). This may amount to a significant loss for the prevailing party, far in excess of the $250 statutory costs (CPLR §8203[a]), because the party awarded costs is also entitled to recover its taxable disbursements, including the reasonable cost of printing the record on appeal and briefs. CPLR §8301(a)(6),

It is also improper to annex to a brief affidavits or exhibits that were not presented to the trial court and properly made part of the record on appeal. In City of New York v. Grosfeld Realty Co., 173 A.D.2d 436 (2d Dept. 1991), the court “note[d] with disfavor the attempt on the part of the appellant’s attorneys to submit on this appeal an affidavit specifically rejected by the Supreme Court and, therefore, not properly part of the record on this matter.” The First and Second Departments expressly prohibit the attachment of unauthorized materials to an appellate brief. Rule 600.10(d)(1)(iii) of the First Department provides that “[u]nless authorized by the court, briefs to which are added or appended any matter, other than specifically authorized by this rule, shall not be accepted for filing.” The rule permits an addendum containing “statutes, rules, regulations, etc.” Rule 600.10(d)(1)(i). In the Second Department, Rule 670.10.3(h) similarly provides what materials may be included in an addendum to the brief, e.g., decisions, statutes, cases, etc., cited in the brief that are not published or otherwise readily available, and states that “[u]nless otherwise authorized by order of the court, briefs may not contain maps, photographs, or other addenda.”

To read the full text of this article by Duane Morris partner Thomas R. Newman and Steven J. Ahmuty, Jr.,  originally published in the New York Law Journal, please visit the Duane Morris website.